1. UN Doc. A/811. The United Nations Assembly adopted the Universal Declaration of Human Rights by a vote of 48 in favour and 0 against, Eight States abstained – Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, USSR, Union of South Africa and Yugoslavia.

2. United Nations Office of Public Affairs, The United Nations and Human Rights. 166 (1978).Google Scholar

3. UN Doc. A/PV. 1496, Provisional. The Covenant was unanimously adopted on 16 December 1966, 106 in favour and 0 against.

4. Buergenthal, T., “International and Regional Human Rights Law and Institutions: Some examples of their interaction,” 12 Tex. Int'l L.J. 321 (1977).Google Scholar Individuals interested in exploring the literature in the human rights field should consult: Bridge, J, Lasok, D., Perrot, D. and Plender, R., eds. Fundamental Rights (1973)Google Scholar; Carey, J., UN Protection of Civil and Political Rights (1970).Google ScholarClaude, J., ed., Comparative Human Rights (1976)Google Scholar; Cranston, M., What Are Human Rights (1973)Google Scholar; Russo, A. Del., International Protection of Human Rights (1971)Google Scholar; Drost, P., Human Rights As Legal Rights (1951)Google Scholar; Duchacek, I., Rights & Liberties in The World Today; Constitutional Promise & Reality (1973)Google Scholar; Eide, A. and Schou, A., eds., International Protection of Human Rights, (1968) (Nobel Symposium 7)Google Scholar; Ganji, M., International Protection of Human Rights (1962)Google Scholar; Green, J., The United States and Human Rights (1956)Google Scholar; Haas, E., Human Rights and International Action (1970)Google Scholar; Kutner, L., ed., The Human Right to Individual Freedom (1970)Google Scholar; Lauterpacht, H., International Law And Human Rights (1950)Google Scholar; Luard, E., ed., The International Protection of Human Rights (1967)Google Scholar; Maritain, J., The Rights of Man and Natural Law (D. Anson trans. 1943)Google Scholar; Melden, A., ed., Human Rights (1970)Google Scholar; Moskowitz, M., International Concern with Human Rights (1974)Google Scholar; Moskowitz, M., The Politics and Dynamics of Human Rights (1968)Google Scholar; Robertson, A., ed., Human Rights in National and International Law (1968)Google Scholar; Robertson, A., Human Rights in the World (1972)Google Scholar; Schwelb, E., Human Rights and the International Community (1964)Google Scholar; Sohn, L.B. and Buergenthal, T., International Protection of Human Rights (1973)Google Scholar; United Nations, “United Nations Action in the Field of Human Rights” UN Doc. ST/HR/2 (1974); United Nations, “The Realization of Economic Social and Cultural Rights: Problems, Policies, Progress” UN Doc. E/CN.4/1131/Rev.1 (1975); Vallat, F., ed., An Introduction to the Study of Human Rights (1972)Google Scholar; Van Dyke, V., Human Rights, The United States, and World Community (1970).Google Scholar

5. See Lane, E., “Demanding Human Rights: A Change in the World Legal Order,” 6 Hofstra L. Rev. (1978) p. 269.Google Scholar

6. Oppenheim, I.L., in Lauterpacht, H., ed., “International Law”: A. Treatise para. 292 at p. 641 (8th ed. 1955).Google Scholar For a contrary point of view see generally Lauterpacht, H., International Law and Human Rights (1950)Google Scholar; Ezejiofor, G., Protection of Human Rights Under the Law (1964).Google Scholar For the views of Grotius, Vattel, Wolff and Pufendorf see Lauterpacht, , op. cit., 114–120Google Scholar. There is general agreement that a state may assume legal obligations towards individuals by virtue of an international agreement. See, Case concerning the Jurisdiction of the Courts of Danzig, PCIJ Series B. No. 15, (1928–30).

7. Lauterpacht, , supra n. 4, at pp. 7, 8.Google Scholar

8. Oppenheim, I.L., International Law: A. Treatise para. 13, 18F (1903).Google Scholar

9. Idem para. 290, p. 344.

10. Lauterpacht, , supra n. 4, at p. 8.Google Scholar

11. Mavrommatis Palestine Concessions Case, PCIJ, Ser. A., No. 2, 12 (1964). See also, Nottebohm Case (second phase) (1955) ICJ Rep. 4, 24. A thorough discussion is contained in Brownlie, I., “The Place of the Individual in International Law” 50 Va.L.Rev. pp. 441, 461 (1964)CrossRefGoogle Scholar; Cheng, Bin, “The contribution of international courts and tribunals to the protection of human rights under international customary law” p. 167Google Scholar in Eide and Schou supra n.4. Another option available to states, in certain situations, is forcible self-help, see, Lillich, R., “Forcible Self-help by States to Protect Human Rights,” 53 Iowa L.Rev. (1967) p. 325.Google Scholar

12. See generally Burns, J.H., “The Rights of Man since the Reformation: An Historical Study” p. 16Google Scholar in Vallat, , ed., supra n. 4Google Scholar; Castberg, F., “Natural Law and human rights. An idea-historical survey” p. 13Google Scholar in Eide, and Schou, supra n. 4Google Scholar; Luard, E., “The Origins of International Concern Over Human Rights” p. 7Google Scholar in Luard supra n. 4; Lauterpacht, supra n. 4 at pp. 73–141Google Scholar; Said, A.A., “Pursuing Human Dignity” Human Rights and World Order (Said, ed., 1978), p. 1.Google Scholar

13. Luard idem at p. 10.

14. See, McDougal, M.S., Lasswell, H.D. and Chen, L.C., “The Protection of Respect and Human Rights: Freedom of Choice and World Public Order,” 24 Am. Univ. L. Rev. (1975) pp. 919, 958–960.Google Scholar

15. Luard, supra n. 12, at p. 12.Google Scholar

16. See, Gutteridge, J.A.C., “War and Human Rights”Google Scholar, in Vallat, supra n. 4 at p. 99.Google Scholar

17. Idem at p. 13. Luard, supra n. 12 at p. 13.Google Scholar Prior to this time efforts had been made by members of one religion exclusively on behalf of their co-religionists.

18. Idem at p. 14.

19. See generally, Macartney, C.A. “League of Nations Protection of Minority Rights”, p. 22Google Scholar in Luard, supra n. 4Google Scholar; Anker, P.M., The Mandates System: Origin-Principles-Application (LN Publ. 1945. VI.A.1)Google Scholar; Hall, H.D., Mandates, Dependencies and Trusteeship (1948)Google Scholar; Wright, Q., Mandates Under the League of Nations (1930).Google Scholar

20. Luard, supra n. 12, at p. 14.Google Scholar

21. Idem at p. 24.

22. Macartney, supra n. 19, at p. 23Google Scholar, lists the instruments under League Control as: Treaties: Poland; Czechoslovakia; Austria; Rumania; Yugoslavia; Greece; Bulgaria; Hungary; Turkey. Declarations: Albania; Lithuania; Latvia, Estonia; Iraq. Local Conventions: Poland and Danzig; Finland; Germany and Poland; Memel. Conventions on exchange of populations: Greece and Bulgaria; Greece and Turkey.

23. For details of the minority treaties, see Idem at pp. 27, 28.

24. Ferguson, C. Jr., “The United Nations Human Rights Convenants; Problems of Ratification and Implementation”, pp. 83, 85Google Scholar in Proceedings of the American Society of International Law, Sixty-Second Annual Meeting, (04 25–27, 1968)Google Scholar; for the international human rights established in the treaties, see Ganji, M.supra n. 4, at p. 46.Google Scholar

25. The League of Nations did leave a significant legacy of human rights and humanitarian activities which has served as an inspiration to the human rights program of the United Nations. A Committee on slavery undertook a study of slavery in the world and was responsible for an anti-slavery convention in 1922. An Advisory Committee on the Traffic in Women and Children also was established. A refugees' organization which survived the life of the league secured re-settlement of over two million refugees from Russia, Turkey and Eastern Europe. Another central achievement was the establishment of an International Labour Organization. A Committee on Traffic in Opium and Other Dangerous Drugs also was formed. Other activities involved a Committee on International Co-operation which promoted intellectual freedom and the position of intellectuals. A health office, predecessor to the World Health Organization, was active in the area of public health. An organization known as the International Relief Union worked in disaster relief. Additionally, a mandate system was established in former German and Turkish colonies. The mandate system was based on the principle that such people “form a sacred trust of civilization”, Luard, supra n. 12, at pp. 16, 21.Google Scholar Luard idem at p. 21, suggests that these developments assisted in the development of viewing the individuals as possessing rights under International Law.

26. 87 Cong. Rec, Pt. I, pp. 46–47, 77th Cong., 1st Sess. A concise account of statements by allied leaders endorsing human rights is contained in, United Nations, United Nations Action in the Field of Human Rights (1974) pp. 5–6.Google Scholar

27. Quoted in Humphrey, J., “The UN Charter and the Universal Declaration of Human Rights”Google Scholar in Luard, supra n. 4, at p. 39.Google Scholar

28. Humphrey idem at p. 40. Another example of human rights protection inspired by the Second World War are the Paris Peace Treaties of 1947 in which each of the defeated states undertook “to take all measures necessary to secure to all peoples under its jurisdiction”, without distinction as to race, sex, language or religion, “The enjoyment of human rights and fundamental freedoms”, including freedom of expression, freedom of the press and publication, freedom of religious worship and freedom of political opinion and public meeting. See the following treaties, Italy Art. 15; Rumania Art. 3(1); Bulgaria Arts. 2 and 30 (1948); and 24 BYIL (1947), pp. 392–398; see also, Interpretation of Peace Treaties, ICJ Rep. (1950) pp. 65 and 27Google Scholar; and discussion in Humphrey idem at p. 40.

29. See, Ezejiofor, G., supra n. 6, at pp. 54, 55.Google Scholar The original Dumbarton Oaks proposal on human rights sponsored by the Soviet Union, United States, United Kingdom and China read: “With a view to the creation of conditions of stability and well-being which are necessary for the peaceful and friendly relations among nations, the organization should facilitate solutions of international economic, social and other humanitarian problems and freedoms. Responsibility for the discharge of this function should be vested in the general assembly in the Economic and Social Council.” As a result of pressure from smaller nations and private NGO's this was amended at the San Francisco Conference to read: “With a view to the creation of stability and well-being which are necessary for the peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the organization should facilitate solutions of international economic, social, cultural and humanitarian problems and promote respect for human rights and fundamental freedoms for all without distinction as to race, language, religion and sex. Responsibility for the discharge of this function should be vested in the General Assembly in the Economic and Social Council.”

30. Humphrey, , supra n. 27 at p. 39Google Scholar; Ezejiofor, supra n. 6, at pp. 54, 55.Google Scholar Humphrey credits the incorporation of these protections in the Charter to the efforts of certain small countries and forty-two private organizations present as consultants to the United States delegation. Sohn comments on the motivation behind inclusion of the human rights clauses in the United Nations Charter: “The reasons for including these provisions in the Charter were many. Some countries, such as the United States and France, have long pioneered in the development of Bills of Rights for the protection of their own citizens, and their representatives felt that humanity as a whole should benefit from their experience. Others wanted to prevent the repetition of the totalitarian atrocities of the 1930's which shocked the conscience of mankind. Another group, dissatisfied with the workings of the minority treaties which were imposed on some states of Eastern Europe and the Middle East after the First World War, felt that the problem of protection of minorities can be solved only in the broader framework of a Bill of Rights applicable to all.” Sohn, L.B., A Short History of United Nations Documents on Human Rights;Google Scholar Commission to Study the Organization of Peace, the United Nations and Human Rights Eighteenth Report of the Commission (1968) pp. 43–56Google Scholar, quoted in Sohn, L.B. and Buergenthal, T., International Protection of Human Rights (1973) pp. 505, 506.Google Scholar

31. McDougal, M.S. and Bebr, G., “Human Rights in The United Nations”, 58 AJIL (1964) pp. 603, 612.CrossRefGoogle Scholar

32. Smuts was a strong verbal advocate of human rights at the San Francisco Conference. Ezejiofor, supra n. 6, at p. 56Google Scholar quotes Smuts' statement at the 6th Plenary Session, 1st May 1948: “I would suggest that the Charter should contain at its very outset and in the preamble, a declaration of human rights and of common faith which had sustained the Allied Peoples in their bitter and prolonged struggle for the vindication of these rights and that faith … We have fought for justice and decency and for the fundamental freedom and rights of man which are basic to all human advancement and progress and peace.” Some would argue that General Smuts close involvement in the human rights movement at the San Francisco Conference is evidence of the purely “symbolic” intent behind the human rights provisions. Conversation with Dr. Martin Chanock, Senior Lecturer, Legal Studies Department, La Trobe University. This argument, may have validity, but Smuts' advocacy of human rights cannot be utilized as evidence that all governments viewed the human rights movement as “symbolic”. For instance, some smaller states were proponents of a strong UN human rights program. Chile, Cuba and Panama all put forward proposals which would have made the United Nations guarantee the protection of specified human rights. Panama urged incorporation of a bill of rights. These proposals were rejected as giving the new organization too much power in the sensitive area of human rights. In the end, drafting of additional protections was left to the Human Rights Commission, Humphrey, supra n. 27, at pp. 40, 41.Google Scholar

33. Sohn, L.B., supra n. 30, at p. 511Google Scholar, comments on the history of Art. 1(3). At the San Francisco Conference, Committee I/1/ adopted the sponsoring powers' proposal for the promotion and encouragement of respect for human rights with only minor drafting changes. Costa Rica questioned whether “promote” might not only authorize the propagation of ideas and principles by the UN, but also authorize the coercion of states to comply with human rights principles. Costa Rica objected to any authorization of the United Nations to use coercion and wanted it stated that the functions of the organization “are purely cultural”. In contrast, other delegations suggested that “promote” be replaced by stronger phraseology such as “to assure” or “to protect” the Committee held that “assuring or protecting human rights was the concern of each state, unless such rights and freedoms were so grievously outraged so as to threaten international peace or obstruct the application of the Charter. Despite the modest language of Art. 1(3) Humphrey, supra n. 27, at p. 41Google Scholar, points out, that it is “of more than rhetorical importance”. Art. 1(3) has been used on a number of occasions as an international standard to which states should conform. In a report submitted to the General Assembly by the United Nations Commission on the racial situation in the Union of South Africa it was stated that certain measures adopted by that country were contrary to the purposes of Art. 1(3) of the Charter. See Repertory of Practice of United Nations Organization, Supp. No. 1, Vol. 1, para. 21.Google Scholar Another example of reference being made to Art. 1(3) was in 1955 when the General Assembly instructed its Committee on Information From Non-Self-Governing Territories to examine summaries and analyses of Art. 73(e) “in the spirit of article 1, paras. 3 and 4”. According to Humphrey, “it is clear that the Assembly can and will undertake investigations, and make recommendations to member states, concerning the application of the purposes of the organization …” Idem pp. 41, 42.

34. Sohn, , supra n. 30, at p. 511.Google Scholar “At the San Francisco Conference, Committee II/3 incorporated into the text of article 55 of the Charter an Australian proposal that the Organization should promote not only respect for human rights, but also their ‘observance’.” This was explained as an attempt to strengthen Art. 55. “Respect” was interpreted by the Australian proposal to connote passivity and the addition of “observance” was intended to imply active implementation and as obligation on state parties to implement the provisions of Art. 55.

35. Humphrey, , supra n. 27, at pp. 42, 43Google Scholar comments that Arts. 55 and 56 “probably creates the only clear legal obligations in the Charter on members to promote respect for human rights”. Humphrey supports this argument by pointing to the language of various United Nations resolutions. For instance, a 1952 General Assembly resolution on South Africa states that “governmental policies which are not directed towards these goals (e.g., equality before the law), but which are designed to perpetuate or increase discrimination, are inconsistent with the pledges of the members under article 56 of the Charter”. Carey, J., supra n. 4, at p. 168Google Scholar agrees with Humphrey and quotes U. Thant as commenting in reference to Art. 56 that “Perhaps the boldest innovation of the Charter was the unconditional and universal obligation in record to human rights and Fundamental Freedoms”, statement at opening of forty-fifth session of ECOSOC Geneva, July 8 1968. UN press release SG/SM/97/ – ECOSOC/2474 (1968). Note, Art. 56 refers to action in “co-operation with the organization”. The Dumbarton Oaks proposals contained no such provision while the San Francisco Conference contemplated a three-fold pledge to take “separate and joint action” and “to co-operate with the organization”. Although Art. 56 precludes any obligation to take any action independent of the United Nations, Goodrich, L.M. and Hambro, E.I., The Charter of the United Nations (1946) p. 320Google Scholar, suggest that Art. 56 obligates Member States, “to refrain from obstructionist acts and to co-operate in good faith in the achievement of the purposes of Article 56”. The history of Art. 56 is confused. Both the pledge in Art. 56 and the full employment clause in Art. 55(a) originated in an Australian proposal according to which members of the United Nations were to take action to secure “economic rights, for all who seek it”. The United States objected that the language of Arts. 55 and 56 might involve the United Nations in the domestic affairs of Member States and pursuant to the United States' objection it was agreed that the report of the Committee should state explicitly that “nothing contained in Chapter IX can be construed as giving authority to the Organization to intervene in the domestic affairs of member states”. Sohn, L.B.supra n. 40, at pp. 512, 513.Google Scholar The United States also objected to a proposal of Subcommittee II/3/A that members of the United Nations should “pledge themselves to take separate and joint action to co-operate with the Organization and with each other to achieve these purposes”. Australia interpreted this to require nations to pursue this objective both within the United Nations and within the domestic sphere. The Sub-committee revised the original draft to require nations to “undertake to co-operate jointly and severally with the Organization for the achievement of these purposes”. This modification in phraseology was justified by the United States on the familiar grounds that any requirement of “separate” action might justify intervention in the domestic affairs of member states.

36. Art. 62(1) empowers the Economic and Social Council to initiate studies and reports with respect to “… international, economic, social, cultural, educational, health and related matters …” Although human rights are not mentioned specifically, Art. 62 has served as a basis for the Council undertaking, though the Commission on Human Rights and other bodies, many reports, studies and draft conventions.

37. Art. 68 is the constitutional basis for the Commission on Human Rights which has performed the basic work in drafting the Universal Declaration of Human Rights and other human rights declarations. Reference to “promoting” respect for human rights was included after a plea by the United States that the Commission “was expected and hoped for by a great many people and there would be a profound disappointment if it were not adopted”. Sohn, , supra n. 30, at pp. 511, 512.Google Scholar

38. Carey, , supra n. 4, at pp. 143–153Google Scholar argues that the trusteeship system creates a “double standard” of protection for human rights by providing greater protection to inhabitants of trustee states than is provided to inhabitants of independent, member states; see also Lauterpacht, supra n. 4, at pp. 160, 161.Google Scholar

39. For a description of such programs, see United Nations Action in the Field of Human Rights, supra n. 26, at p. 192Google Scholar; Clark, R.S., A United Nations High Commissioner for Human Rights, (1972), pp. 29, 30.Google Scholar

40. Ezejiofor, , supra n. 29, at p. 59.Google Scholar

41. 1 UNCIO Docs. 717 (1945). Sohn, L.B., supra n. 30, at pp. 507–510Google Scholar, details the efforts to include a bill of rights in the Charter. One of the early drafts of the Charter of the United Nations prepared by the United States Department of State in 1942 included a bill of rights containing “a common program of human rights” to which United Nations members would have to subscribe. Disagreement arose over inclusion of socio-economic rights and over measures of implementation. An additional draft of 14 August 1943 was formulated which was termed a “Declaration of Human Rights” and a proposed provision in the Charter specified that: “The Members of the United Nations agree to give legislative effect to the Declaration of Human Rights annexed to this Charter. Measures of enforcement shall be applied by the administrative and judicial authorities of each Member without discrimination as to nationality, language, race, political opinion, or religious belief.” In April 1944 the United States abandoned the idea of preparing a Declaration and the United States “Plan for a General International Organization” only contained a provision empowering the General Assembly to initiate studies and make recommendations for “the promotion of the observance of basic human rights in accordance with principles or undertakings agreed upon by the states members of the international organization”. A similar provision was included in the United States “tentative proposals for a General International Organization”, submitted to the Dumbarton Oaks Conference. At that Conference, the United Kingdom suggested that one of the purposes of the United Nations should be to “guard man's freedom by institutions for removing social wrongs” while China proposed that the United Nations should be based on the principle of equality of races as well as states. In the end, British and Soviet objections to inclusion of specific human rights obligations in the Charter resulted in the Dumbarton Oaks proposals containing only one general reference to United Nations promotion of human rights and fundamental freedoms, see n. 29. At the San Francisco Conference a large number of human rights amendments were submitted. The Sponsoring Governments attempted to compromise by agreeing to incorporate references to the promotion of human rights and non-discrimination in the statement of purposes (later Art. 1), in the powers of the General Assembly (later Art. 13), in the powers of the Economic and Social Council (later Art. 62), in the statement of economic and social goals (later Art. 55), and in the provision relating to the setting up of commissions by the Economic and Social Council (later Art. 68). In explaining these additions to the Charter, Mr. Edward R. Settinius, Jnr., United States Secretary of State noted that they “are essential if we are to build peace on the basis of justice and freedom for all” and that the people of the world “rightly demand the active defense and promotion of basic human rights and fundamental freedoms. It is a matter of elementary justice that the demand be answered affirmatively”. He expressed the hope that the proposed Commission on Human Rights will “promptly undertake to prepare an international bill of rights which can be accepted by all the member nations as an integral part of their own systems of law, just as our Bill of Rights has been an integral part of our system of law”. Other proposals for human rights protection in the Charter should be noted. Field Mashal Smuts of South Africa suggested that “declaration of human rights” be placed in the Preamble of the Charter, see n. 32; A Columbian submission called for the Preamble to recognize that individual rights are a “necessary condition of peace”; a Panamanian proposal suggested inclusion of an “International Bill of Rights” in the Charter; Uruguay and then in separate proposals, Mexico, Equador and Chile called for imposing obligations guaranteeing the “full and complete protection of rights”; Norway urged that a human rights clause in addition to being included in the state of Purposes of the United Nations, be included in the Statement of Principles. Norway pointed out that this would strengthen human rights protections since expulsion is available as a sanction for violation of Principles but not for contravention of Organizational Purposes. A New Zealand proposal urged inclusion of the “Four Freedoms” in the Charter and a joint proposal sponsored by Brazil, the Dominican Republic and Mexico and a separate Indian proposal, both successfully urged insertion of a human rights and antidiscrimination clause among the Purposes of the organization. The inclusion in the Charter of a bill of rights was not undertaken due to a “lack of time” at the San Francisco Conference. See Doc. 723 I/1/A/9, at 10, 6 UNCIO Does, at no. 5. An excellent discussion of these proposals is contained in Huston, J., “Human Rights Enforcement Issues of The United Nations Conference on International Organization”, 53 Iowa L. Rev. (1967), p. 272.Google Scholar

42. Humphrey, , supra n. 27, at p. 47.Google Scholar

43. Sohn, L.B., “The Human Rights Law of the Charter”, 12 Tex Inst'1 L.J. (1977) p. 129.Google ScholarLauterpacht, supra n. 4, at p. 159Google Scholar, argues that the Charter effects “a far-reaching change in the position of the individual in international law” by recognizing in “an international treaty of wide generality” the “rights of the individual as such”. Given the ambiguous status of most international human rights instruments, the legal effect of the Charter, despite its weaknesses in drafting, is a question of some importance. Kelsen, , The Law of United Nations (1950) p. 29Google Scholar argues that “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 the text of the Charter”. The Charter's language, rather than being couched in precise legalistic terms, is characterized by a “lack of definiteness and definition” and by “hortatory phrases”. Henkin, L., “The United Nations and Human Rights”, 19 Int'1 Organization (1965) pp. 504, 510.CrossRefGoogle ScholarMoskowitz, Moses, Human Rights and World Order, (1959) pp. 31, 32Google Scholar suggests that the Charter is not in itself a source of legal obligations in reference to human rights. Moskowitz bases his arguments on the fact that UN intervention to enforce human rights is limited to action taken to meet a “threat to the peace” or a “breach of the peace” under Chapter VII. Otherwise, UN action in support of human rights is limited to “promotion and encouragement of human rights”. In effect, Moskowitz concludes that, there is, “no power other than that of international public opinion or example which can require a Member State to adopt any particular program for the promotion of human rights”. In contrast, Sohn, L.B., Tex. L.I. supra n. 43, at pp. 131, 132Google Scholar, contends that “The Charter is the cornerstone of international jus cogens, and its provisions prevail over all other legislative acts. Should a state conclude a treaty or issue a legislative act or regulation which constitutes a gross violation of human rights, such a treaty or act would be clearly invalid as contrary to a basic and overriding norm of the Charter, and any Tribunal, international or domestic, which might be asked to apply such a treaty, act or regulation, should refuse to do so.” Lauterpacht, supra n. 4, at pp. 146, 147Google Scholar agrees with Moskowitz that the UN Charter fails to provide machinery to implement the Charter's human rights clause, but still maintains that the Charter imposes legally binding obligations. “In so far as such protection signifies the safeguarding of human rights and fundamental freedoms through a legally authorized and effective machinery of compulsion, it would seem that the authors of the Charter rejected the idea of a guarantee thus conceived”. He observes that the proposal that the Charter should ensure that only the “promotion”, but also the “protection” of human rights and fundamental freedoms was rejected on the grounds that it “might be interpreted as giving the United Nations the right to impose actively upon the Members the observance of human rights and freedoms …” and after reviewing the Charter provisions, Lauterpacht observes that the restraint exhibited by these provisions. “Studiously falling short of conferment of direct executive authority, is impressive in its consistency. This caution is made more conspicuous by the choice of the agencies entrusted with the implementation, such as it is, of the provisions of the Charter. These agencies are the General Assembly and the Economic and Social Council. By the terms of the Charter both these organs are deprived of executive and legislative powers of binding decision. The only organ of the United Nations which is endowed with that power to a high degree, namely, the Security Council has no ordinary jurisdiction in the matter of human rights …” Despite these “loose protections”, Lauterpacht; idem at p. 148, argues that the “cumulative legal result of all these pronouncements cannot be ignored”. The fact that there is no definition or implementation of human rights is not controlling, “for the Charter fails to provide for the enforcement of its other numerous obligations the legal character of which is undoubted”. The fact that human rights are not defined, results in a “diminished effectiveness” for the UN Charter rather than the protections being “destroyed”, idem at pp. 148, 149. Lauterpacht, ibidem goes on to support his argument by reference to the mandatory language of the human rights provisions in the Chater. “There is a mandatory obligation implied in the provision of Article 55 that the United Nations shall promote respect for, and observance of human rights and fundamental freedoms; or, in the terms of Article 13, that the Assembly shall made recommendations for the purpose of assisting in the realization of human rights and freedoms. There is a distinet element of legal duty in the undertaking expressed in Article 56 in which ‘all members pledge themselves to take joint and separate action in co-operation for the achievement of the purposes set forth in Article 55’, idem p. 148. A legal obligation also is placed upon the United Nations qua organization: “It is an inescapable principle of interpretation that whenever an international instrument defines in its constitution, the purposes of its being, the right and obligation to give effect to those purposes are inherent in it and nothing short of an express derogation from that explicit authority can legitimately restrict the powers and obligations in question”. Idem p. 159.

44. Report of the Preparatory Commission of the United Nations (PC/20) Chap. III, Section 4, paras. 15–16.

45. Executive Committee Report on Committees and Commissions of the Economic and Social Council (PC/EX/95, section B, para. 21, p. 18).

46. GA Res. 7 (I) 29 January, 1946; ECOSOC Res. 5(I) of 16 February 1946.

47. The Commission was charged with submitting proposals, recommendations and reports to the Council concerning: (a) an international bill of rights; (b) international declarations or conventions on Civil Liberties, the Status of Women, Freedom of Information, and similar matters; (c) the protection of minorities; (d) the prevention of discrimination on grounds of race, sex, language or religion.

48. Lauterpacht, supra n. 4, at p. 274Google Scholar; Humphrey, supra n. 27, at p. 48.Google Scholar

49. The Soviet Union attacked the drafting committee as “unrepresentative” and Mrs. Roosevelt reconstituted the Committee to include Australia, Chile, China, the United States, France, Lebanon, the United Kingdom and the Soviet Union. Humphrey, supra n. 27, at p. 48.Google Scholar

Initially the Commission was unable to produce a draft owing to differences of opinion over whether the bill of rights ought to be a non-binding declaration of principles or a binding international instrument. This disagreement was solved by initially adopting a declaration which would be non-binding, see report of the drafting Committee Doc.E/CN.4/21. The Drafting Committee was considered by the Commission in December 1947. The Commission decided to prepare both a non-binding declaration and a binding Covenant. In addition, a Working Group on Implementation was established in order to study methods of giving effect to international human rights guarantees, the Commission provisionally adopted drafts of a declaration and a Covenant for submission to the Economic and Social Council while the report of the Working Group was reserved for further study. The draft articles for an international declaration of human rights and for an international covenant on human rights and the report of the Working Group of Implementation are contained in Doc. E/800 and in Economic and Social Council, Official Records, Third Year, Sixth Session, Suppl. No. 1 (1948)Google Scholar. The Economic and Social Council did not have time to examine either the Draft Declaration or the Covenant, but decided to submit the Draft Declaration in the next session of the General Assembly in Paris. Lauterpacht, supra n.4, at pp. 275, 276.Google Scholar

50. Humphrey, , supra n. 27, at p. 48.Google Scholar

51. Res. 217A(111) in General Assembly, 3rd Session, Official Records Pt. I, Resolutions, p. 71; See also 43 AJIL Supp. (1949) p. 127. The vote was 48 in favour, 0 votes against, eight abstentions and 2 were absent. One of the absent contries subsequently informed the Secretary-General that if its representative had not been prevented from attending the meeting, the delegate would have voted for the Declaration. Doc. A/1311 of 7 August 1950. The dissenting votes came from the Soviet Union, five Eastern, Communist bloc countries, Saudi Arabia and South Africa.

52. Ibidem.

53. McDougal, M.S. and Bebr, G., “Human Rights in the United Nations”, supra n. 31, at p. 614.Google Scholar

54. Ibidem.

55. General Assembly Official Records, 3rd Session, Pt. I (1948) p. 262. Abram, Morris B., New York Times, 10 25, 1969 6 (Magazine), at p. 117Google Scholar and Pierre Juvigny of the French Conseil d'Etat, UN Secretariat, International Year for Human Rights, Newsletter No. 8, Supp. No. 1, (1966) at p. 18, both point out that the Universal Declaration is unique in having combined both civil, economic and social rights in the same instrument.

56. Humphrey, , supra n. 29, at p. 49Google Scholar, citing Goodrich, L.M., The United Nations (1959) p. 324.Google Scholar The swift passage may have been due to the Declarations non-binding character.

57. Humphrey, supra n. 27, at p. 51.Google Scholar

58. United Nations and Human Rights, supra n. 26, at p. 9.Google Scholar For a comprehensive survey of human rights efforts inspired by the Universal Declaration of Human Rights see idem at 11–15; and Office of Public Information, The United Nations and Human Rights (1978) pp. 25–29.Google Scholar

59. Ezejiofor, , supra n. 29, at p. 59.Google Scholar The UN Office of Legal Affairs clarified the Legal Status of a “declaration”. UN Doc. E/CN.4/L.610. “In the United Nations practice, a ‘declaration’ is a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated, such as the Declaration on Human Rights. A recommendation is less formal … A ‘declaration’ or a ‘recommendation’ is adopted by a resolution of a United Nations Organization. As such it cannot be made binding upon Member States, in the sense that a treaty or convention is binding upon the parties to it, purely by the device of terming it a ‘declaration’ rather than a ‘recommendation’. However, in view of the greater solemnity and significance of a declaration, it may be considered to impart on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States.” Carey, , supra n. 4, at p. 9Google Scholar, seems to adopt this analysis in arguing that the Universal Declaration has a “quasi-legal status”, U. Thant referred to the Declaration as “norm-setting”. Ibidem.

60. Lauterpacht, , supra n. 4, at p. 400Google Scholar. A full discussion of the question of the legal status of declarations is contained in idem at pp. 397–408.

61. Idem at p. 404. This view was limited to France, China and Belgium. The remarks of Mrs. Roosevelt often are quoted in support of the position that the Declaration has no legal status: “It is not a treaty: it is not an international agreement. It is not and does not purport to be a statement of law or legal obligation. It is a declaration of basic principles of human rights and freedoms to serve as a common standard of achievement for all peoples of all nations.” 19 Dept. State Bull (1948) p. 751. For the statement of other representatives, see The United Nations and Human Rights: Eighteenth Report of the Commission to Study the Organization for Peace (1968)Google Scholar. Humphrey, , supra n. 27, at p. 50Google Scholar, points out that the General Assembly had given the Commission a mandate to draft a convention covering the same rights covered in the declaration. Thus, if the declaration was intended to be binding, the Covenant would be duplicative and serve no purpose.

62. Sohn, L.B., “The Universal Declaration of Human Rights”, 8 J. Int'l Comm. Jur. (1967) pp. 17, 26.Google Scholar See also Schwelb, E., Human Rights and the International Community (1964).Google Scholar

63. Final Act of the International Conference on Human Rights, A/Conf. 32, (1968), at p. 4; see also statement of the unofficial Montreal Assembly for Human Rights which states that the “Universal Declaration of Human Rights constitutes an authoritative interpretation of the Charter of the highest order, and has over the years become a part of customary law”. See 9 J. Int'l Comm. Jur. (1968) p. 94, 95, see also Carey, J., supra n. 4, at pp. 13, 14.Google Scholar

See also, statement of the United Nations Secretary-General at the proclamation of the Final Act of the International Conference on Human Rights at Teheran. UN Doc. A/720/Add.1 (1968) at p. 13: “… the declaration not only constitutes an authoritative interpretation of the Charter obligations but also a binding instrument in its own rights, representing the consensus of the international community on the human rights which each of its members must respect, promote and observe”. Compare these statements with a resolution adopted unanimously by a Working Session of the World Peace Through Law Centre at Geneva in September 1968. See, World Peace Through Law Centre, “The International Observance, World Law Day Human Rights 1968”, Pamphlet Series No. 12 (1969), at p. 34. The session, “resolved to note that the Universal Declaration of Human Rights is in fact not part of the International Law of Nations in spite of its ratification by the General Assembly of the United Nations, and to reaffirm that all nations should consider the Declaration as a legal guide and that they have a moral responsibility to recognize its provisions, be they personal, political, economic or social, and to implement them, where appropriate, by just national legislation or administrative measures”. Brierly attempts an interesting compromise between these two positions. Brierly, , The Law of Nations (6th Ed. 1963) p. 293Google Scholar, argues that the Charter does not just “contain a pious injunction to co-operate in promoting respect of human rights …”. But a, “pledge to co-operate implies a negative obligation not to act as to undermine human rights”. Thus, the Charter, in Brierly's view, imposes a negative duty on states.

64. GA Res. 1514 (XV), 15 UN GAOR, Supp. (16) 66–67, UN Doc. A/4684 (1960); and GA Res. 1904, Article ii, 18 UN GAOR, Supp. (15) 35–37. UN Doc. A/5515 (1963).

65. ECOSOC Res. 1503 (XLVIII) 27 May 1970. M.H. Guggenheim, “Key Provisions of the New United Nations Rules Dealing With Human Rights Petitions” 6 NYUJL & P. (1973) pp. 427, 435. Further discussions of the Declaration are contained in Robinson, N., The Universal Declaration of Human Rights: Its Origin, Significance, Application and Interpretation (1958)Google Scholar; Schwelb, E., Human Rights and the International Community: The Roots and Growth of the Universal Declaration of Human Rights 1948–1963 (1965)Google Scholar; Sohn, L.B., “A Short History of United Nations Documents on Human Rights”Google Scholar, Commission to Study the Organization of Peace, The United Nations and Human Rights (18th report of the Commission, 1968)Google Scholar; Rabanbeln, S., A Muslim Commentary on the Universal Declaration of Human Rights (1970)Google Scholar; Verdoodt, A., “The Present Significance of the Universal Declaration of Human Rights”, 7 World Justice (1965) pp. 158–169.Google Scholar

66. Report of the Commission on Human Rights, Second Session, Economic and Social Council Office Records Supplement No. 1 (E/600), paragraph 18, 17 December 1947; GA Resolutions 217F(III), 10 December 1948; 421 E(V) 4 December 1950; p. 543 (VI), 5 February 1952. Initially it was thought that only civil and political rights should be protected, but the majority of the General Assembly declared at its fifth session (1950) that the enjoyment of civil and political freedoms and economic, social and cultural rights “are interconnected and interdependent” and instructed the Commission on Human Rights to include in the Draft Covenant, “a clear expression of economic, social and cultural rights in a manner which related them to the civil and political freedoms proclaimed by the draft covenant”. GA Res. 421 E(V), 4 December, 1950. In 1952 the General Assembly decided that two covenants should be drafted, simultaneously approved and opened for signature. GA Res. 543(VI), 5 February, 1952. It should be noted that the preamble of each of the Covenants recognizes that the “ideal of free human beings … can only be achieved if conditions are created whereby everyone may enjoy the economic, social and cultural rights, as well as his civil and political rights”.

67. Schwelb, E., “Some aspects of the International Covenants on Human Rights of December 1966”Google Scholar, in Eide, and Schou, supra n. 4, at p. 103.Google Scholar Although suggestions were made to reconsider the decision to have one covenant, the subject was not reopened formally since a great deal of delay would have resulted. See idem p. 106 citing UN Doc. A/C.33/SR.1396, 17 October, 1966). (Sudan). See also, Starr, R., “International Protection of Human Rights and the United Nations Covenants”, 1967 Wise. L. Rev. pp. 863, 864Google Scholar n. 4 Schwelb idem at p. 106 states that the decision “for two instruments can be explained by the … fundamental different character of the rights concerned”.

68. Starr, , supra n. 67 at p. 864 n.4.Google Scholar

69. Ibidem.

70. GA Resolution 217A(III), 10 December, 1948.

71. UN Doc. A/PV.1496, Provisional. The voting was unanimously in favour of both the International Covenant on Economic, Social and Cultural Rights (105–0) and of the Civil and Political Covenant (106–0) with a majority in favour of the optional protocol (66 in favour, 0 opposed and 38 abstentions).

Australia signed the Covenant on Political and Civil Rights on 18 December 1972; the United States signed the Covenant on 5 October 1977. Neither country has taken the legislative action required to ratify the Covenant. Schwelb, E., “Some Aspects of the International Covenants on Human Rights of December 1966” supra n. 67, at p. 123Google Scholar, remarks that the impetus gained from passage of the Convention on the Elimination of all Forms of Racial Discrimination was responsible for passage of the International Convention on Civil and Political Rights. Useful discussions of the Covenants can be found in Ganji, M.supra n. 4Google Scholar; Green, T., The United Nations and Human Rights (1956) pp. 37–67Google Scholar; Schwelb, E., Human Rights and the International Community (1964)Google Scholar; MacChesney, A., “International Protection of Human Rights in the United Nations”, 47 Nw.U.L. Rev. (1952) p. 198Google Scholar; R. Starr, supra n. 67.

72. Sohn, L.B., “The Human Rights Law of the Charter”, supra n. 43, at pp. 135–136.Google Scholar Sohn idem at p. 136, comments that since the Covenant was adopted unanimously by 105 votes to 0 and the Universal Declaration by 50 votes to 0, that the Covenant “is even more universal in their origin than the declaration”.

73. Starr, , supra n. 67, p. 867Google Scholar. Robertson, H.A., Human Rights in the World, supra n. 4, at p. 37Google Scholar lists rights which are in the Covenant which do not appear in the Universal Declaration of Human Rights: the rights of detained persons to be treated with humanity; freedom from imprisonment for debt; prohibition of propaganda for war and of incitement to hatred; the rights of the child; the rights of minorities. The right to property is contained in the Universal Declaration but excluded from the Covenant on Civil and Political Rights.

74. Idem pp. 36, 37, 38.

75. Ibidem. See article on the right to life “which, although not prohibiting the death penalty”, clearly is “drafted with the intention of indicating that it should be abolished”. Art. 10 provides that all detained persons, “shall be treated humanely and with respect for the inherent dignity of the human person”; separate facilities are to be provided for juveniles and adult offenders; and that the “essential aim” of the penitentiary system shall be the “reformation and social rehabilitation of prisoners”. Art. 14 guarantees defendants certain rights at trial – an independent, impartial tribunal, a public hearing, presumption of innocence and protection against self-incrimination, right of appeal, compensation for a miscarriage of justice, and the principle of ne bis in idem.

76. Idem at p. 38.

77. See Art. 18(3) (right of thought conscience, and religion).

78. See Art. 21 (right of assembly); Art. 12 right of internal movement); Art. 22(2) (right to form and join unions).

79. See Art. 19(3)(a)(b) (right of expression).

80. Schwelb, E., “Some aspects of the International Convention”, supra n. 67, at p. 115.Google Scholar

81. Ibidem.

82. See Art. 4(1)(2)(3). See also Publications of the European Court of Human Rights, Series B, Lawless Case (hearing of 04 8, 1961)Google Scholar; for ruling of the European Court, Lawless Case (Merits), Judgment of 1 July, 1961, paragraph 22, reprinted in Yearbook of the European Convention On Human Rights (1961), Vol. 4, p. 472.Google Scholar Both the European Commission and Court of Human Rights take the position that it was their task to determine whether the conditions for exercise of a similar right of derogation had been fulfilled and whether the exceptional measures did not exceed the extent strictly required by the situation.

83. The European Convention under Art. 15 permits derogation from obligations under the European Convention in time of “war” as well as in time of “other public emergency”. No derogation is permitted from Art. 2 (right to life); Art. 3 (right to be free from torture or inhuman or degrading treatment of punishment); Art. 4(1) (right to be free from slavery); and Art. 7 (right to be free from punishment for an act which was not a crime at the time the act was committed). The American Convention on Human Rights, Art. 27, permits derogation from the rights protected in the Convention in “time of war, public danger, or other emergency that threatens the independence or security of a State Party”; under Art. 27(2) no derogation is permitted from Art. 17 (rights of the family); Art. 18 (right to a name); Art. 19 (rights of the child); Art. 20 (right to a nationality); Art. 23 (right to participate in government).

84. Art. 27(3) of the American Convention on Human Rights requires that States Parties not only must inform other States Parties of derogation of rights in the Convention in “time of war, public danger, or other emergency that threatens the independence or security of a State Party”, but that such States Parties must set a date for “termination of such suspension”.

85. The language of Art. 17 of the European Convention is identical to that of Art. 5 of the Covenant on Civil and Political Rights. Art. 17 was the basis for the European Commission of Human Rights rejection in July 1957 of an application by the German Federal Constitutional Court of 17 August 1956, that had declared the Party illegal, dissolved it and confiscated its assets. The Commission determined that the declared aims of the Party, according to its own declarations, was to establish a Communist society by means of proletarian revolution and to establish the dictatorship of the proletariat. The Commission found that “dictatorship” would be inconsistent with rights under the Convention and that the activities of the Party fell clearly within Art. 17, Application 250/57, Yearbook 1, pp. 222–225.Google Scholar Article 2a(a) of the American Convention of Human Rights does not permit any “… group or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein”.

86. This might arise in the context State security agencies engaged in harassment of the State's nationals living abroad.

87. For discussion of multi-national corporations, See United Nations, Multi-national Corporations in World Development (1973)Google Scholar and The Impact of Multi-national Corporations on Development and, on International Relations, Report of the Group of Eminent Persons to Study the Impact of Multy-National Corporations on Development and on International Relations (1974).Google Scholar

88. States Parties to the European Convention, under Art. 1, “shall secure to everyone within their jurisdiction the rights and freedoms …” The American convention under Art. 1 obligates States Parties to “undertake to respect the rights and freedoms recognized herein and to ensure … the free and full exercise of the rights protected in the Convention”.

89. Schwelb, E, supra n. 67, at p. 108Google Scholar; Robertson, , supra n. 4, at p. 37Google Scholar, takes the position that Art. 2(2) permits “progressive implementation of rights presently not provided for”. Robertson also points to what he feels are “promotional elements” within the Covenant. For instance, States Parties undertake to submit reports on measures they have adopted which give effect to the rights recognized in the Covenant and “on the progress made in the enjoyment of those rights”. Art. 23(4) concerning marriage and divorce appears to be a promotional article, States Parties, “shall take appropriate steps” to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution”.

90. Schwelb, supra n. 67, at p. 108.Google Scholar

91. Other limitations on State Party responsibility under the International Covenant on Economic, Social and Cultural Rights include Art. 4 which provides that a “… State may subject such rights only to such limitations as are determined by law only so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.

A further limitation on state responsibility is contained in Art. 2(3) which provides that, “developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”. Starr, supra n. 67, at p. 869Google Scholar, remarks that this latter provision runs counter to the Charter principle of sovereign equality of Member States, and it fails to take account of certain minimum standards that international law imposes on States with respect to treatment of aliens. “Furthermore, it is difficult to reconcile this provision with the spirit of universality and non-discrimination of the Universal Declaration, embodied in the preceeding paragraph of the same Article of the Covenant.”

92. At the same time, as of January 1978, only slightly more states had signed the International Covenant on Economic, Social and Cultural Rights than had signed the International Covenant on Civil and Political Rights. The former Covenant had 46 signatories (23 ratifications) and the Civil and Political Covenant 44 signatories (24 ratifications). See, Amnesty International, International Bill of Human Rights (1978) p. 50.Google Scholar

There are two additional problems with human rights guarantees in the Covenant and two conceptual problems all of which should be mentioned. Under Art. 50 the provisions of the Covenant are extended to constituent units of federal States (e.g., United States, Australia, Canada, India). This presents a problem since many of the human rights guarantees in the Covenant are within the constitutional powers of constituent units of federal states and implementation of such rights depends upon the initiative of the constituent units. See UN Doc. A/C.3/SR. 1411; Report of the Third Committee A/6546, paragraphs 129–136; See also proposed United States reservation to Art. 50 “Message from the President of the United States Transmitting The International Covenant On Civil and Political Rights” 95th Congress 2nd Session, XIV, 23 February, 1978.

Secondly, according to Schwelb, , supra n. 67, at p. 114Google Scholar the Commission on Human Rights was unable to agree on a clause on reservations. GA Res. 546(VI), 5 February, 1952. See report of the tenth session of the Commission on Human Rights E/2573(1974). The absence of a provision on reservation will, according to Schwelb, permit states to formulate reservations “not incompatible with the object and purpose of the treaty”, ibidem. “Acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that State … If South Africa were to decide to ratify the Covenants subject to the reservation that it does not accept those of their provisions which prohibit discrimination and if one single other State Party were to accept this reservation, South Africa would become a party to the Covenants with all the prestige and Status this might imply”, Ibidem. As suggested, there are two conceptual difficulties involved in the Covenant. Art. 1(1) (the same article appears in the Covenant on Economic, Social, and Cultural Rights) provides that, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” See GA Resolution 545(VI), 5 February 1952; for drafting of final text, see, General Assembly Official Records, 10th Session (1955)Google Scholar, Annexes, Report of the Third Committee A/3077, paragraph 27–77. The Third Committee adopted the article by 33 votes to 12 with 13 abstentions. Art. 1(3) provides that the States Parties, including those having responsibility for the administration of non-self-governing and trust territories, “shall promote the realization of the right of self-determination, and shall respect that right …”. The inclusion of these two ambiguous, collective rights may be inappropriate in a Covenant addressing individual human rights. Another conceptual problem involves Art. 1(2) of both the Civil and Political Covenant and the Economic and Social Covenant; and Art. 47 of the Civil and Political Covenant and Art. 25 of the Economic and Social Covenant. Art. 1(2) provides that, “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources”. This collective right also seems conceptually distinct from the individual rights enumerated in the Covenant on Civil and Political Rights.

93. Commission on Human Rights, Report of the tenth Session, 18 UN ESCOR, Supp. (No. 7), UN Doc. E/2573 (1954). At the request of the General Assembly, GA Res. 833, 9 UN GAOR, Supp. (No. 21) at p. 20, UN Doc. A/2890 (1954), the Secretariat prepared the Annotations on the text of the draft International Covenants on Human Rights, Chapters VII and IX of which deal with the draft measures of implementation. 10 UN GAOR, Annexes (Agenda Item 28, Part II) 67 and 116, UN Doc. A/2929 (1955). At a later stage, again at the request of the General Assembly, GA Res. 1843B, 17 UN GAOR, Supp. (No. 17) 35 UN Doc. A/5217 (1962), the Secretary General prepared an additional Explanatory paper on measures of implementation, 18 UN GAOR, 2 Annexes (Agenda Item 48, UN Doc. A/5411 (1963). Capotorti states that “international measures of implementation is used to indicate, the collective legal instruments through which the States parties to a multilateral agreement, or the Organization which has promoted the stipulation of agreements among the Members, try to ensure the fulfillment of the obligations undertaken by each contracting State”. The most widely used measures of international implementation are periodic reports, conciliation between states, and individual petition. Capotorti, F., “The international measures of implementation included in the Covenants on Human Rights”, p. 131Google Scholar, in Eide, and Schou, supra n. 4.Google Scholar

94. Schwelb, , supra n. 67, at pp. 104, 105.Google Scholar

95. See, report of the Third Committee, 18 UN GAOR 2 annexes (agenda item 48) 14, 23–25, paras. 109–124 UN Doc. A/5655 (1963) and summary records of the 1267th to 1269th and 1273rd to 1275th meetings of the Third Committee, 18 UN GAOR, C.3 (1267th mtg.) 287, UN Doc. A/C.3/SR.1267 (1963); (1268th meeting) 293, UN Doc. A/C.3/SR.1268 (1963); (1269th meeting) 299, UN Doc. A/C. 3/SR. 1269 (1963); (1273rd meeting) 327 UN Doc. A/C.3/SR.1273 (1963); (1274th meeting) 333, UN Doc. A/C.3/SR.1274 (1963); (1275th meeting) 341, UN Doc. A/C.3/SR.1275 (1963); (1276th meeting) 347, UN Doc. A/C.3/SR.1276 (1963). See also GA Res. 1960, 18 UN GAOR, Supp. (No. 15) 42, UN Doc. A/5515 (1963).

96. Report of the Third Committee, 10 UN GAOR, 2 annexes (Agenda Item 65) 10, UN Doc. A/6173 (1965), and summary records of the 1370th and 1374th meetings of the Third Committee, 20 UN Doc. A/C.3/SR.1370 (1965) and (1374th meeting) 503, UN Doc. A/C.3/SR.1374 (1965). See also GA Res. 2080, 20 UN GAOR, Supp. (No. 14), UN Doc. A/6014 (1965).

97. See Report of the Third Committee, 21 UN GAOR, 2 annexes (Agenda Item 62) 7, UN Doc. A/6546 (1966) and 21 UN GAOR (1496th Plen. Meeting) 1–14, UN Doc. A/PV.146 (1966). The implementation measures are discussed in, Buergenthal, T., “Implementing the UN Racial Convention”, 12 Tex. International L.J. (1977) p. 187.Google ScholarCapotorti, F., supra n. 93, p. 131Google Scholar; Schwelb, E., “Civil and Political Rights: The International Measures of Implementation”, 62 AJIL (1968) p. 827CrossRefGoogle Scholar; Schwelb, E., “The International Measures of Implementation of the International Covenant on Civil and Political Rights And of the Optional Protocol,” 12 Tex. International L.J. (1977) p. 141.Google Scholar

98. “Annotations”, supra n. 93, draft Art. 40, at p. 81Google Scholar and draft Art. 43, at p. 89.

99. Idem draft Art. 27, at p. 68.

100. Idem draft Art. 44, at p. 91.

101. Idem draft Art. 48, at p. 95 and draft Art. 49, at p. 100.

102. For a description of these attempts, see Schwelb, E., “Notes on the eaily legislative history of the measures of implementation of the Covenant on Human Rights” in Mélanges Modinos (1968).Google Scholar

103. By the time the General Assembly examined the provisions on implementation of the Covenant on Civil and Political Rights, liberal implementation measures had been incorporated in the International Covenant on the Elimination of all Forms of Racial Discrimination, GA Res. 2106A, 20 UN GAOR, Supp. (No. 14), p. 47, UN Doc. A/6014.

104. See the statements in the meeting of the Third Committee by the USSR (Mr. Nasinovsky). 21 UN GAOR, C.3 (1397th meeting) 121–22, para. 48, UN Doc. A/C.3/SR.1397 (1966) and idem (1399th meeting) 127, paras. 22–24, UN Doc.A/C.3/SR.1399 (1966); Ukranian SSR (Mr. Kornyenko), 21 UN GAOR, C.3 (1415th meeting) 220 paras. 8–11, UN Doc. A/C.3/SR.1415 (1966); Bulgaria (Mr. Bahnev), 21 UN GAOR, C.3 (1416th meeting) 226, paras. 7–11, UN Doc. A/C.3/SR.1416 (1966); Czechoslovakia (Mrs. Sekaninova-Cakrtova, idem at p. 228, paras. 22–25, Rumania (Mr. Glazer), idem at p. 227, paras. 15–18; Hungary (Mr. Beck), 21 UN GAOR C.3 (1417th meeting) 237, para 37, UN Doc. A/C.3/SR.1417 (1966). The positions were the same in the general debate at the 18th Session of the General Assembly.

105. In the early years of discussion on implementation measures the Soviet Union opposed reporting procedures as being an interference with the sovereignty of states. Statement by the Soviet Delegation to the Commission on Human Rights, report of the Fifth Session, 9 UN ESCOR, Supp. (No. 10), Annex 111, 47–48, UN Doc. E/1371 (1949). See also, Carey, J., “Implementing Human Rights Conventions ‘The Soviet View’” 53 Kentucky L. Rev. (1964) p. 114.Google Scholar

106. Mr. Glazer (Rumania), 21 UN GAOR, C.3 (1416th meeting) 227, para. 16, UN Doc. A/C.3/SR. 1416 (1966).

107. See Lady Gaitskell (UK), 21 UN GAOR, C.3 (1415th meeting) 222, para. 25, UN Doc. A/C. 3/SR. 1415 (1966); Mr. MacDonald (Canada), 21 UN GAOR, C.3 (1387th meeting) 62, para. 37, UN Doc. A/C.3/SR. 1387 (1966); Mr. Mommersteeg (Netherlands) 21 UN GAOR, C.3 (1397th meeting) 119, para. 19, UN Doc. A/C.3/SR. 1397, idem (1400th meeting), 132, para. 14, UN Doc. A/C.3/SR.1400 (1966).

108. Two virtually identical drafts were proposed. India, Iran, Libya, Nigeria, Pakistan, Senegal, Sudan, The United Arab Republic and Upper Volta sponsored UN Doc. A/C.3/L.1379 and Rev. 1; and UN Doc. A/C.3/1373 was co-sponsored by the same delegations together with those of Mali, Mauritania, Senegal, Sierra Leone and Tunisia [The documents hereinafter cited as the Afro-Asian Amendments].

109. Mr. Sanon (Upper Volta) 21 UN GAOR, C.3 (1418th meeting) 242, para. 12, UN Doc. A/C.3/SR 1418 (1966).

110. Mr. Sinha (India), 21 UN GAOR, C.3 (1416th meeting) 225, para. 1, UN Doc. A/C.3/SR, 1418 (1966).

111. The draft covenant spoke of persons having “judicial or legal experience”. The reference to “judicial experience” was deleted by the Third Committee by a vote of 86 in favour, 0 opposed and 3 abstentions, 21 UN GAOR, C.3 (1420th meeting) 249, para. 11, UN Doc. A/C.3/SR.1420 (1966); Draft International Covenants on Human Rights, Report of the Third Committee, 21 UN GAOR, C.3 (Agenda Item 62) 56, para. 194 and 58, para. 207, UN Doc. A/6546 (1966) [herein cited as Draft International Covenants Report]. The Commission on Human Rights draft also called for persons of “high moral standing” which was amended to read “high moral character”. Draft International Covenants Report idem at p. 56, para. 193 and p. 58, para. 206. The Racial Discrimination Convention Art. 8, provides that experts of “high moral standing and acknowledged impartiality” serve on the Committee on the Elimination of Discrimination (Art. 8). The American Convention requires that the Inter-American Commission be composed of seven members of “high moral character and recognized competence in the field of human rights” (Art. 34).

112. In contrast, under Art. 8(6) of the Racial Discrimination Convention, States Parties are responsible for expenses of the members of the Committee. Expenses of the European Commission on Human Rights are to be borne by the Council of Europe (Art. 58). Art. 72 provides that the OAS will provide “emoluments and travel expenses” for the members of the Inter-American Commission.

113. This is considered an advance over the Convention on the Elimination of All Forms of Racial Discrimination which in Art. 8(2) provides that a State Party may nominate only one person from among its own nationals. The European Convention in Art. 21(1) provides for election of the European Commission by the Committee of Ministers. Each State Party may put forward three candidates, two of whom shall be its own nationals. The American Convention on Human Rights goes even further than the European Convention in attempting to provide that an individual is not dependent for nomination and election upon his/her state of nationality (Art. 36(2)). Each government may propose up to three candidates who may be nationals of any Member State of the Organization of American States. A slate of three must include at least a nominee who is a national of another Member State.

114. Commission on Human Rights, Report of the Seventh Session, 13 UN ESCOR Supp. (No. 9) 17, para. 78, UN Doc. E/1992 (1951). An attempt to reinstate the provision in 1953 was unsuccessful, Commission on Human Rights, Report of the Ninth Session, 16 UN ESCOR, Supp. (No. 8) 20–21, paras. 181–184 and Annex III, at p. 69, paras. 175–176, UN Doc. E/2447 (1953). A provision for members ad hoc appears in Art. 8 of the 1962 Protocol to the UNESCO Convention Against Discrimination in Education (1962).

115. Capotorti, supra n. 93, at p. 136.Google Scholar

There is a related area where the neutrality of the Committee is in question. The Covenant does not require that members of the Committee be nationals of a state which has accepted the optional interstate communication procedures contained in Art. 41 or the Optional Protocol's right of individual petition. Such committee members may be nationals of states having objections to such procedures who will, on political and philosophical grounds, be reluctant to find any nation “at fault”.

116. The original Afro-Asian Amendments supra n. 108, at Art. 39, provided that the parties report on “the progress made in giving effect to the rights recognized herin”. This was modified in the existing language providing for reports to comment on “progress made in the enjoyment of those rights”. The original language might have been interpreted to mean that the governmental action giving effect to the rights might have been undertaken progressively. The final text restricts the “progressiveness” to the “enjoyment” of the right, e.g., to the results of the governmental action without implying that governmental action might be undertaken progressively. For debate see Miss Hart (New Zealand) 21 UN GAOR, C.3 (1426th meeting) 282, para. 23, UN Doc. A/C.3/SR.1426 (1966); Miss O'Leary (Ireland) 21 UN GAOR, C.3. (1427th meeting) 285, para. 2, UN Doc. A/C.3/SR.1427 (1966); Mrs. Ramaholimilaso (Madagascar) 21 UN GAOR, C.3 (1427th meeting) 289, paras. 29–30, UN Doc. A/C.3/SR.1427 (1966); Mr. Sanon (Upper Volta) idem at p. 289, para. 35; Mr. Mohammed (Nigeria) idem at p. 289 para. 36.

117. See “Human Rights Committee adopts guidelines for States Reports” 14 UN Chronicle (08–09 1977) p. 41Google Scholar; “Committee Considers States' Reports, Complaints From Individuals”, 15 UN Chronicle (03 1978), p. 31.Google Scholar

118. The International Covenant on Economic, Social and Cultural Rights provides for reports to be submitted to the Economic and Social Council which may transmit them to the Commission on Human Rights for study and “general recommendations” (Art. 19). The Economic and Social Council may submit, “from time to time”, to the General Assembly reports with recommendations of a “general nature” and a summary of the information received from the States Parties to the present Covenant (Art. 21). Thus, the Economic and Social Council may. go beyond “comments” and make “general recommendations”. Under the Covenant on Racial Discrimination, the Committee on the Elimination of Racial Discrimination may, after having considered reports by States Parties make “suggestions and general recommendations based on the examination of the reports and in information received from the States Parties” (Art. 9(2)).

119. Moskowitz, M., The Politics of Human Rights (1968), p. 94Google Scholar, cited in Clark, R. S., A United Nations High Commissioner for Human Rights (1972), p. 94.Google Scholar According to the UN Chronicle supra n. 117, at the end of August 1977 only 17 of the 37 states “due to submit their reports” had done so. At the end of March 1978 18 of the states still had not submitted reports.

120. Capotorti, supra n. 93, at pp. 139, 140.Google Scholar Caportorti looks approvingly at the International Labour Organization and European Social Charter: “In the International Labour Organization … reports are examined by an expert committee and are then summarized and transmitted to the relevant committee of the General Conference with the observations of the experts. The latter Committee discussed the conclusions of the first examination and finally submits its own detailed report to the Conference in plenary meeting. It is for the Conference to adopt this report and to formulate approaches, recommendations. The European Social Charter establishes an even more complex procedure; reports are examined by an expert committee: the committee's conclusions are transmitted both to the Assembly of the Council of Europe for its advice, and to a sub-committee of the Social Committee of the Council of Europe. The sub-committee reports to the Committee of Ministers and the latter may address its recommendations to the States after further consultation with the Assembly.”

121. Idem at p. 140.

122. Idem at p. 138. It should be noted that the reporting system complements an existing procedure of the Commission on Human Rights instituted in 1956. ECOSOC Res. 624B (XXXII) of 1 August 1956, ESCOR 22nd Sess., Supp. No. 1 at p. 12, UN Doc. E/2929 (1956): presently governed by ECOSOC Res. 1074 (XXXIX) of 28 July 1956, ESCOR 38th Sess., Supp. No. 1 at pp. 24–25 UN Doc. E/4117 (1965). Under the original 1956 text Member States and specialized agencies were asked to submit to the Secretary-General a report every three years describing the developments and the progress achieved during the preceeding three years in the field of human rights, and measures taken to safeguard human liberty in the States' metropolitan area and non-self-governing and trust territories. It invited specialized agencies to transmit every three years a report in respect of rights coming within their purview. The Secretary-General was requested to prepare and forward to governments' suggestions which might serve as a guide for preparation of the reports by governments on a topical basis, and to prepare a brief summary of the reports for the Commission on Human Rights, the first reports were to cover the years 1954–1956. States Members and specialized agencies were invited to include a separate section on rights designated by the Human Rights Committee. At the Thirty-ninth Session of the Economic and Social Council in 1963 the system of reporting was revized and information was to be submitted within a continuing three-year cycle; (a) in the first year on civil and political rights; (b) in the second year on economic, social and cultural rights; and (c) in the third year on freedom of information. The Economic and Social Council on 24 July 1962 invited non-governmental organizations in consultative status to submit comments and observations of an objective character on the situation in the field of human rights to assist the commission in consideration of the summaries of periodic reports.

SirHoare, Samuel, “The UN Commission on Human Rights”Google Scholar, in Luard, supra n. 4, pp. 59, 86Google Scholar, remarks that in addition to the fact that the reports have not been submitted by all UN Member States, “The reports are extremely uneven in presentation content and informativeness. They are naturally, despite exhortations to Member States in Council resolutions to give information about difficulties encountered, more concerned with recounting achievements than with recording inadequacy of failure. Nor have the conclusions that it has been possible to draw from them so far been very enlightening. Some, but not many, non-governmental organizations have so far contributed comments and observations.”

123. The Convention on Racial Discrimination provides for a mandatory inter-state complaint and conciliation system under Art. 11.

124. “Not giving effect to the provisions of the present Covenant”, presumably includes violation of both substantive and procedural provisions (e.g., failure to submit a report).

125. Under the American Convention of Human Rights, if a “friendly settlement” has been reached, the Commission shall draw up a report which shall be transmitted to the petitioner, to the States Parties to the Convention and also to the Secretary-General of the Organization of American States for publication. The report shall “contain a brief statement of the facts and of the solution reached”. If any Party involved in the matter so requests, the “fullest possible information shall be provided to it”. If a settlement is not reached, the Commission shall draw up a report “setting forth the facts and stating its conclusions”. If within three months from the date of transmittal of the report to the States Parties concerned, the matter has not been either settled or submitted by the Commission or by the State concerned to the Inter-American Court of Human Rights, the Commission may, by majority vote, set forth “its opinion and conclusions concerning “the questions submitted for its consideration”, where “appropriate”, the Commission shall make “pertinent recommendations” and shall “prescribe a period within which the State is to take the measures that “are incumbent upon it to remedy the situation examined”. When the prescribed period had expired, the Commission shall decide by majority vote whether the State has taken adequate measures and whether to publish its report. See Art. 48, 49, 50, 51. These provisions which provide for a statement of “conclusions” and “recommendations” are stronger than those in the Civil and Political Covenant. Under the European Convention on Human Rights, if a “friendly settlement is reached between the parties a report shall be sent to the parties concerned, to the Committee of Ministers and to the Secretary-General of the Council of Europe for publication. The Report shall be confined to a “brief statement of the facts and of the solution reached”. If a solution is not reached the Commission shall draw up a Report on the facts and state its opinions as to “whether the facts disclose a breach by the State concerned of its obligations under the Convention”. The opinions of all members of the Commission on this point may be stated in the Report and shall be transmitted to the Committee of Ministers who, if they do not refer the matter to the European Court of Human Rights, … “shall decide by a majority of two-thirds whether there has been a violation of the Convention”. If a violation has taken place, the Committee may prescribe a period during which the Contracting Party must take the measures required by the Commission. If the Contracting Party does not comply, the Committee of Ministers shall decide “what effect shall be given to its original decision and publish the report” (Arts. 24, 25, 31). Under both the American and European Conventions complaints may originate from any person, group of persons or Contracting State Party. See American Convention Arts. 44, 45; European Convention Arts. 24, 25. However, under the European Convention complaining persons and non-governmental organizations must claim to be victims of a violation of one of the Contracting Parties.

126. Judge Winiaski, Southwest Africa Cases [dissent]. Southwest Africa Cases [1962]Google Scholar ICJ 452 [preliminary objections].

127. See Art. 42, discussed infra.

An additional question concerns Art. 41(c) which requires exhaustion of domestic remedies, presumably by the individual whose rights allegedly have been violated. It might be argued that an individual's exhaustion of domestic remedies should not be a condition precedent to vindication of the interests of the Community of Nations. Starr, , supra n. 67, at p. 880, n. 82.Google Scholar

128. The American Convention on Human Rights provides in Art. 49, that if a “friendly settlement” has been reached, the Secretary-General of the OAS shall publish the report. If a settlement has not been reached and the case has not been referred to the Inter-American Court, the Commission has the discretion to publish its “opinion and conclusions” in the event that the offending state has not taken the measures incumbent upon it to remedy the situation” (Arts. 49, 51). The European Convention on Human Rights in Art. 30 provides for publication of the report of the Sub-commission of the European Commission on Human Rights which considered the matter in the event a “friendly solution” is not reached. If a “solution has not been reached”, and the matter has not been referred to the European Court of Human Rights, the Commission may publish its report in the event it considers that a violation has occurred and the offending state has not taken “satisfactory measures” within the “prescribed period” to remedy the situation (Art. 32). See supra n. 125.

129. The Inter-American Convention (Art. 50) and the European Convention both provide (Art. 31) for dissenting opinions in the event an initial settlement is not reached.

130. The original Afro-Asian Draft supra n. 108, spoke of the Committee receiving and considering “complaints” by states. In a revised version, “complaint” was replaced by communication”. The Third Committee apparently tried to eliminate any terminology creating the impression that the Committee would be concerned with “disputes” and “cases”. Report of This Committee supra n. 111, at pp. 92–93, para. 402. In 1953 the Committee on Human Rights adopted a United Kingdom Amendment based or. the provision on the European Commission on Human Rights instructing the Committee, to “draw up a report on the facts and state its opinion as to whether the facts found disclosed a breach of the State concerned of its obligations …”. The clause ultimately was deleted. The present phraseology was adopted 58 in favour, 0 opposed and 24 abstentions, idem at p. 298, para. 54. The rejection of the language proposed by the United Kingdom seems to have been based on the belief that a clear distinction should be maintained between the “good offices” provided by the Committee and judicial functions exercised by the International Court of Justice. See Mrs. Dick (USA) 18 UN GAOR, C.3 (1273rd mtg.) 329, para. 20. UN Doc. A/C.3/SR.1273 (1963). At the same time, it was recognized that the threat of judicial scrutiny of human rights dispute would be a strong impetus to settlement, between the States Parties, Miss O'Leary (Ireland), 21 UN GAOR, C.3 (1429th mtg.). 300 para. 8., UN Doc. A/C.3/SR. 1429 (1966). However, the Committee's “brief statement of facts” might reflect the Committee's view of the merits of the dispute since, “a brief statement of the facts” covers facts as ascertained by the Committee. See Mr. Sakesena (India), 21 UN GAOR, C.3 (1428th mtg) 294, para. 11 UN Doc. A/C.3/SR 1428 (1966).

131. See Art. 42 infra. The Netherlands proposed an amendment which would have limited the Committee to considering communications brought within six months from the date of decision by domestic authorities. See report of Third Committee supra n. 111, at p. 107, para. 446. Subsequently the Netherlands reconsidered its proposal and concluded that this might prevent the Committee from examining bona fide communications. Mrs. Zeydner Rempt, 21 UN GAOR C.3 (1429 mtg.) 293, para. 9 UN Doc. A/C.3/SR.1428 (1968).

132. As of 1 January, 1978, Amnesty International, reports that Art. 41 has been accepted by Denmark, Finland, the Federal Republic of Germany, Norway and Sweden.

133. The American Convention on Human Rights (Art. 44) and the European Convention on Human Rights (Art. 25) partially avoid the problems associated with the politics of international diplomacy by providing for the lodging complaints by individuals and non-governmental organizations. The argument that the process is too flexible and may encourage frivolous complaints and inflame international tensions is put forth by Mr. Ozgur (Cyprus), 21 UN GAOR, C.3 (1428th mtg.) 295, para 28, UN Doc. A/C.3/SR.1428 (1966).

134. Schwelb, E., “The International Measures of Implementation”, supra n. 97, at p. 161.Google Scholar

135. The two cases were a complaint by Portugal against Liberia and a complaint by Portugal against Liberia, Schwelb, ibidem remarks that, “It is not difficult to discern that both complaints were motivated by foreign policy considerations of the states concerned”.

See Report of the Commission appointed under Art. 26 of the ILO Constitution to examine the complaint filed by the Government of Ghana concerning the observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957. (No. 105), ILO Official Bulletin, Supp. 11, April 1962 (Vol. 45, No. 2); and Report of the Commission appointed under Art. 26 of the ILO to examine the complaint filed by the Government of Portugal concerning the observance by the Government of Liberia of the Forced Labour Convention 1930 (No. 29), ILO Official Bulletin, Supp. 11. April 1963 (Vol. 46, No. 2).

136. Greece v. United Kingdom (1956) and Greece v. United Kingdom (1957). Documents and decisions, 1955–1956–1957, at pp. 128–131, [1958–59] Y.B. Eur. Convention on Human Rights pp. 174–99Google Scholar (Eur. Comm'n of Human Rights).

137. Austria v. Italy [1961] Y.B. Eur. Conv. on Human Rights. No. 116 (Eur. Comm'n of Human Rights); idem [1962] at p. 54; idem [1963] at p. 740 (Comm. of Ministers).

138. Applications by Ireland of 1971 and 1972. See Communications by the Council of Europe to the Commission on Human Rights of the United Nations, Council of Europe Doc. H(75) 3 (1975).

139. Denmark, The Netherlands, Norway and Sweden v. Greece [1968] Y.B. Eur. Conv. On Human Rights, pp. 690 and 730Google Scholar (Eur. Comm'n of Human Rights); idem (1970) at pp. 108 and 122.

140. Lady Gaitskell, [United Kingdom] 21 UN GAOR, C.3 (1415th mtg.) 223, para. 29. UN Doc. A/C.3/SR. 1415 (1966).

141. See Amnesty International Report 1977 and idem 1978 detailing abuse of human rights in over 110 countries in both years.

142. The Human Rights Committee has the authority to take the initiative in soliciting the “prior consent of the parties,” this resulted from a United States amendment, approved by a narrow majority of the Third Committee, replacing a provision of the Afro-Asian draft under which convening of an ad hoc Conciliation Commission only would have been possible “at request” of both parties. The United States amendment was adopted by a vote of 42 in favour, 32 opposed and 19 abstentions. Report of the Third Committee supra n. 12, at p. 107, para. 460.

143. Schwelb, , “The International Measures of Implementation”, supra n. 97, at pp. 174–177.Google Scholar Questions whether “view” improperly was substituted for “recommendations”. The original French sub-amendment read “ses constations”, which Schwelb argues at the time the subamendment was offered was said to mean, “its views”, implying to establish, verify, ascertain, note.

144. The International Convention on the Elimination of All Forms of Racial Discrimination does not provide for an intermediate Human Rights Committee “type” process. Instead, complaints are to be initially directed to the Committee on the Elimination of Racial Discrimination which shall “obtain and collate all the information it deems necessary” and then transmitted to a five-person ad hoc Conciliation Committee which makes its “good offices” available with a view “to an amicable solution of the matter” (Art. 12 (I)(a)). After having “fully considered the matter”, the Commission shall prepare a report “embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute” (Art. 13(1)). The report shall be communicated to the States Parties concerned for comment and within three months the report and any declarations by the States Parties concerned are to be communicated to the other States Parties to the Convention (Art. 13(2)(3)).

145. One anomaly in the provisions for the Conciliation Committee is Art. 42(a) providing that the States Parties are to share equally the expenses of the Commission. This would seem to discourage utilization of the procedure.

146. Capotorti, supra n. 93, at p. 142.Google Scholar

147. UN Doc. A/C.3/L.1335(1966) Report of the Third Committee Note 14, at p. 119, para. 474; for the introductory statement by the representative of the Netherlands, (Mr. Mommersteeg), see 21 UN GAOR, C.3 (1414th mtg.) 217–218, paras 24–25.

148. UN Doc. A/C.3/L.1402. (Co-sponsored by Iran, Lebanon, Nigeria, Pakistan).

149. (Co-sponsored by Canada, Columbia, Costa Rica, Ghana, Jamaica, the Netherlands, Nigeria, Pakistan, Philippines and Uruguay) UN Doc. A/C.3/L.1402/Rev. 2. The text was considered at the 1438th to 1441st meeting of the Third Committee.

150. The vote was 41 for, 39 against with 16 abstentions. 21 UN GAOR, C.3 (1440th mtg). 377–78, para. 321, 378, para. 32, 379, para 52 UN Doc. A/C.3/SR.1440 (1966). See also Report of the Third Committee supra n. 111, at p. 123, para 485.

151. UN Doc. A/C.3/L.1411 (30 Nov. 1966). A revised version of this proposal was cosponsored by Canada, Chile, Costa Rica, Ghana, Jamaica, Lebanon, the Netherlands and the Philippines, UN Doc. A/C.3/L.1411/Rev. 1 and Rev. 2 (Dec. 1, 1966).

152. The vote was 59 for, 2 against and 32 abstentions, 21 UN GAOR, C.3. (1415th mtg.) 450, para. 16, UN Doc. A/C.3/SR.1451 (1966).

153. 21 UN GAOR (1496th plen. mtg.) 6 para. 60, UN Doc. A/Pv. 1496 (1966).

154. The Third Committee had originally decided to include the draft article on individual petition in a “separate” protocol “annexed” to the Covenant. Eventually, the view prevailed “that it was impossible to have a Protocol both ‘separate’ and ‘annexed’”. Mrs. Saksena (India) 21 UN GAOR, C.3 (1451st mtg.) 453–54, para. 52, UN Doc. A/C.3/SR.1451 (1966).

Mr. Schreiber, the Director of the Division of Human Rights made it clear that the Covenant and the Protocol were separate instruments, although they were substantially related, since only parties to the Covenant could become parties to the Protocol. It should be noted that International Convention on the Elimination of All Forms of Racial Discrimination, 1966, recognizes the right of individual petition within the main text (Art. 14). The American Convention on Human Rights provides for an optional inter-state complaint procedure (Art. 45) and a mandatory provision for petition by individuals and non-governmental organizations (Art. 44). In reference to the procedures for individual petition under the Covenant on Racial Discrimination and the Covenant on Civil and Political Rights, Capotorti observes, “The most interesting difference is that the Committee on the Elimination of all Forms of Racial Discrimination has more restricted powers to declare an individual communication admissible; in particular, the Convention does not make reference to any abuse of the right of petition. At the end of the procedure, the Committee may transmit its “suggestions and recommendations” to the State concerned and to the individual; these terms are more precise than the word “views” – used in the protocol, and imply a greater degree of authority in the part of the Committee. It is also to be noted that each Party to the Convention may entrust a view or existing domestic body with the task of a preliminary consideration of individual petitions.” Capotorti, supra n. 93, at pp. 143, 144.Google Scholar

155. Schwelb, , “The International Measures of Implementation”, supra n. 97, at p. 179.Google Scholar Schwelb goes on to note that apart from such practical considerations that there is no legal difference between inclusion of the optional right of individual petition within the body of a treaty and inclusion of the right of petition in a separate protocol. He observes that in addition, in both cases ratification of the main instrument is required as a condition precedent to recognition of the right of individual petition.

156. Amnesty International, International Bill of Human Rights, supra n. 92, at p. 50.Google Scholar The inter-state complaint procedure interestingly has only been adopted by six states. The optional right of individual petition in the Racial Discrimination Convention has only been accepted by 5 states.

157. United Nations, Towards, A World Without Racism, (1978) p. 6Google Scholar: Admittedly there was an international consensus concerning the desirability of the Convention on the Elimination of All Forms of Racial Discrimination.

158. Additional evidence substantiating this point is the fact that only six states have accepted the inter-state complaint procedure which is contained “within” the Covenant on Civil and Political Rights.

159. Initially the term “petition” was used, supra n. 148. “Petition” was changed later to “communication” supra n. 149. The delegate from France urged this modification, since “petition” was only available under the Trusteeship System. See statement by Mr. Paolini (France)

21 UN GAOR, C.3. (1418th mtg.) 242, para. 8, UN Doc. A/C.3/SR 1418 (1966). See United Nations Charter Art. 87(b). However, this modification in language was interpreted as implying no substantive change, Mr. Gros Espiell (Uruguay) 21 UN GAOR, C.3 (1438th mtg.) 364, para. 44, UN Doc. A/C.3/SR 1438 (1966). The American Convention on Human Rights refers to “petitions” or “communications” (Art. 48). The European Convention on Human Rights provides for submission of “petitions” (Art. 27) and the International Convention on the Elimination of All Forms of Racial Discrimination in Art. 14 refers to “communications” while Art. 14(7)(a)(b) describes the initiating party as the “petitioner”.

160. Technically the Protocol distinguishes between grounds which make petition “inad missible” (Art. 3) and grounds on which the Committee “shall not consider a communication” (Art. 5). The major distinction appears to be that “inadmissible” communications are not brought to the attention of the State Party involved (Art. 4(1)).

161. “Views” was preferred by the UN General Assembly to the seemingly stronger term “suggestions” contained in the initial draft. E.M. Tardu, “The Protocol to the United Nations Covenant on Civil and Political Rights and the Inter-American System: A Study of Co-Existing Petition Procedures” 70 AJIL (1976) pp. 778, 781, citing UN Doc. A/C.3/L.1402. Rev. 2. and UN Doc. A/C.3/L.1411/Rev.2.Under the Optional Protocol the Committee offers its “views” on the substance of the matter as opposed to the Art. 42 interstate communication provisions under which the ad hoc Conciliation Commission reports its “findings” on the relevant facts and its “views on the possibilities of an amicable solution of the matter”. Tardu argues that “views” in the Optional Protocol encompasses “judgements as to the conformity of conduct of the state with the covenant”.

162. Tardu, ibidem comments that “it was generally understood that such reports would be published”, citing summary records of the Third Committee in UN Docs. A/C.3/SR.1440, paras. 8 and 24, and A/C.3/SR.1441, paras. 13–27 and 39, and proposals in UN Doc. A/C.3/1.1441 and Rev. 1. Schwelb concurs with Tardu concluding that, under the terms of the Optional Protocol, the Human Rights Committee is “called upon to forward its views on the whole complex of facts and questions of law which have been presented. Schwelb, “The International Measures of Implementation”, supra n. 97, at p. 186. Although, the preparatory work of the General Assembly in 1966 appears to admit only “general” reporting by the Human Rights Committee exclusive of “references to particular countries”. Tardu ibidem citing UN Doc.A/C.3/SR.1435, para. 17. Tardu concludes that the “contents of the Committee's reports would be left to the discretion of the Committee itself. Ibidem, citing UN Doc. A/C.3/SR.1440, para. 16.

163. Bilder, R., “Re-Thinking International Human Rights: Some Basic Questions” 1969 Wis. L. Rev. pp. 171, 205.Google Scholar See infra n. 92. It should be noted that Art. 10 extends the Protocol to “all parts of federal states without any limitations or exceptions”. This presents problems for States Parties which are federally constituted states with limited delegations of power to the central government.

164. A related requirement it that the harm suffered by the “victim” must have occurred after the Optional Protocol has entered into force within the State Party against whom the petition is lodged. See “Procedures for Petitions by Individuals”, 24 UN Chronicle (August-09 1977) p. 42.Google Scholar Another problem is determining how far the concept of “state action” should extend.

165. Ibidem.

166. “The conclusion seems inescapable.that the scope of the procedural protection afforded by the Protocol cannot be wider than that of the Covenant”. Schwelb, supra n. 97, at p. 181.Google Scholar Under Art. 2(1) of the Covenant a State Party shall respect and ensure the rights recognized in the Covenant to all individuals within its territory and subject to its jurisdiction. The words “within its territory” thus apply as a limitation in the Optional Protocol. It also should be noted that such a “territorial limitation” does not appear in any other major human rights instrument.

167. The Art. 3 requirement that anonymous communication … is defensible in that it prevents communications submitted in “bad faith”. However, it also may subject complainants to reprisals. The inadmissibility of those submissions “considers the Committee to be an abuse of the right of submission” would appear to permit exclusion of “trivial” “inflammatory” communications and those submitted for the purpose of “harassing” States Parties.

168. Manke, H.I., “The Exhaustion of Domestic Remedies in the United Nations subcommission on Prevention of Discrimination and Protection of Minorities”, 24 Buffalo L. Rev. (1968) pp. 643, 644, 645.Google Scholar

169. Tardu, supra n. 164, at pp. 784, 785Google Scholar offers a comprehensive discussion of the problem of competing international procedures.

The preparatory work in the Third Committee of the UN General Assembly in 1966 manifested a trend towards a stronger assertion of the powers of the Human Rights Committee vis-a-vis competing international procedures. The principle una via electa was gradually abandoned in favour of the present system of adjournment of proceedings pendente lite. An initial draft of the article would have precluded action by the Human Rights Committee in all cases where any implementation procedures set forth in other instruments would have been invoked. Ibidem citing UN Doc. A/C.3/L.1399. The proposal was withdrawn after many delegates had expressed the view that the proposal would unjustifiably place the Human Rights Committee in a subsidiary position vis-a-vis competing organs, and for all intents and purposes, “nullify” the Committee. Ibidem citing records of the 1432nd and 1433rd meetings of the Third Committee, UN Docs.A/C.3/SR.1433 para. 12. Later in the debates amendments were put forward providing that the Human Rights Committee would not consider complaints from individuals if the same matter had already been “submitted” to another procedure of international investigation or settlement, ibidem citing UN Doc. A/C. 3/L. 1355, para. 2 and A/C.3/L. 1402/Rev.2. This formula was revised to include the language “is being examined”, UN Doc. A/C. 3/L. 1411/Rev. 2. The present formula finally was adopted with 54 votes in favour, none opposed and 29 abstentions. Ibidem citing summary record of the 1446th meeting of the Third Committee, UN Doc.A/C.3/SR. 1446. Tardu argues that the Committee would be authorized to consider a communication even if the matter is “being examined” under a competing international procedure if the Committee feels the competing procedure is “unreasonably prolonged”. Ibidem citing summary records of the 1441st and 1446th meetings of the Third Committee, UN Docs. A/C.3/SR. 1441, para. 20 and A/C.3/SR. 1446, para. 16.

170. It is not clear whether the Committee will examine the adequacy of the remedy provided. For instance, a state only may provide for a conciliation or an arbitration remedy and not provide compensation for parties whose rights have been violated. In such a case the question arises whether the Committee would analyse the adequacy of the remedy provided for the complaining party.

171. There is no provision in the Protocol for informing individual “victims” that their petition has been received; of the response by the State Party concerned; or when the matter will be heard. For a discussion of the problems faced by poorly educated defendants, see Drost, P., supra n. 4, at pp. 112, 113.Google Scholar

172. There is no provision for dissenting opinions.

173. Capotorti, supra n. 93, at p. 144Google Scholar, observes that the short-comings of the Protocol must be appreciated in the context of the Protocol's bold provision for individual petition: “If we think of the deep reluctance on the part of governments to be placed on the same level as the individuals before an international body, we shall fully realize the importance of the petition procedure, and at the same time the difficulty (to make) it more efficient. This difficulty is even greater because the said procedure could bring to a comparison between the point of view of a State Party and that of one of its nationals, both of which must be equally and carefully considered by the competent international body, when all the State's domestic remedies have been exhausted without giving satisfaction to the individual. If we bear this in mind, it will be easy to understand the optional character of the petition machinery.” Capotorti, ibidem, goes on to argue that the non-judicial character of the Protocol dictates that the Committee be confined to exercising “modest powers”. “… were individual petitions to be followed by adequate international acts, including the condemnation of the state which has failed to observe its obligations, it would be absolutely necessary to ascertain the facts and to implement the relevant clauses of the agreement through a judiciary proceeding. In fact, as long as the examination of the petitions is entrusted to a non-judiciary organ and is carried out on the basis of a restrictive investigation, without the guarantees connected with judicial proceedings, it will logically be concluded only with suggestions and recommendations, or with the expression of “views” from the competent organ, which have more of a political than a legal value.” Bilder, Richard, supra n. 16 at p. 211Google Scholar suggests that the Optional Protocol should not be viewed as a mechanism to be used in all cases of violation of human rights, but that it should be used … where the exercise of the right of petition is likely to prove in effect a class action, revealing and potentially remedying pervasive human rights denials, it would seem capable of promoting human rights in a significant way.

174. Bilder, , supra n. 163, at p. 205.Google Scholar

175. E. Schwelb, Remarks at International Conference about the European Convention on Human Rights, Vienna, Australia 18–20 October, 1965 in A.H. Robertson, supra n. 4, at pp. 307, 317.

176. Bilder, , supra n. 163 at p. 205.Google Scholar

177. Clark, R.S., supra n. 119.Google Scholar See also, Bilder, R., “The International Promotion of Human Rights: A Current Assessment”, 58 AJIL, (1964) p. 728.CrossRefGoogle Scholar

178. Ibidem.

179. Capotorti, supra n. 93, at p. 146.Google Scholar

180. Ibidem.

181. Saario, V.V. and Higgens, R., “The United Nations and the International Protection of Human Rights: A Legal Analysis and Interpretation”, 7. Cal. Westr'n Int'l L.J. (1977) pp. 591, 606.Google Scholar

182. Nanda, V.P., “Implementation of Human Rights by the United Nations and Regional Organizations”, 21 De Paul L. Rev. (1971) pp. 307, 321.Google Scholar

183. Bildei, R., supra n. 163, at p. 206.Google ScholarMacChesney, B., “Should the United States Ratify the Covenants? A Question of Merits: Not of Constitutional Law”, 63 AJIL (1968) pp. 912, 914CrossRefGoogle Scholar notes, “… it is somewhat ironic to note that the voting majorities that extended the scope of the substantive provisions at the same time weakened considerably the provisions for enforcement, particularly with respect to the final implementation provisions in the Civil and Political Covenant.” MacChesney's comment suggests States saw the Covenant primarily as a political rather than as a legal document.

184. Nanda, , supra n. 182, at p. 322.Google Scholar

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206. Bilder, supra n. 163, at pp. 216, 217Google Scholar, writes that “The diversity of problems and goals, embracing much of human social experience, suggests the need for a similar diversity of approaches, tailored to particular needs, conditions, resources and possibilities”. See also Bilder, supra n. 177, at p. 733.Google Scholar

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