Copyright (c) 1982 The American University Law Review American University Law Review
FALL, 1982
32 Am. U.L. Rev. 1
LENGTH:
33708 words
ARTICLE: THE NEW
INTERNATIONAL LAW: PROTECTION OF THE RIGHTS OF INDIVIDUALS RATHER THAN
STATES.
NAME: LOUIS B. SOHN *
BIO:
* Woodruff Professor
of International Law, University of Georgia School of Law; Bemis Professor of
International Law, Emeritus, Harvard Law School. LL.M., 1935, John Casimir
University, Lwow, Poland; LL.M., 1940, S.J.D. 1958, Harvard University.
This Article is based on a series of lectures delivered by
the author at the College de France in June 1982. The staff and editors of the
AMERICAN UNIVERSITY LAW REVIEW have provided supplementary footnotes for this
Article.
SUMMARY: ... THE
DYNAMIC CHANGES IN INTERNATIONAL LAW SINCE THE SECOND WORLD WAR ... Thereafter,
the state is said to be "asserting its own rights -- its right to ensure in the
person of its subject, respect for the rules of international law." ... The
League of Nations' system of minority protection functioned well for fifteen
years. ... Similary, when rebelling against the English King, the American
revolutionaries in 1776 relied in their Declaration of Independence on the
concept of "inalienable rights" endowed by their Creator. ... In addition, the
Covenant contains a special undertaking "to ensure the equal rights of men and
women to the enjoyment of all civil and political rights." ... It allows special
measures necessary to ensure that groups adequately advance toward equality. ...
Some states announced that they were unwilling to become parties to a binding
instrument such as the Covenant if they would thereby have to commit themselves
to clauses concerning economic, social, and cultural rights. ... The Covenant
includes one exception to the principle of equality, however, and another
exception was accepted although it is not explicitly mentioned. ... As the
General Assembly pointed out in 1979, "the right to development is a human right
and . . . equality of opportunity for development is as much a prerogative of
nations as of individuals within nations." ...
TEXT: [*1] I. THE DYNAMIC CHANGES IN
INTERNATIONAL LAW SINCE THE SECOND WORLD WAR
The modern
rules of international law concerning human rights are the result of a silent
revolution of the 1940's, a revolution that was almost unnoticed at the time.
Its effects have now spread around the world, destroying idols to which humanity
paid obeisance for centuries. Just as the French Revolution ended the divine
rights of kings, the human rights revolution that began at the 1945 San
Francisco Conference of the United Nations has deprived the sovereign states of
the lordly privilege of being the sole possessors of rights under international
law. States have had to concede to ordinary human beings the status of subjects
of international law, to concede that individuals are no longer mere objects,
mere pawns in the hands of states.
Before dwelling on
the various aspects of this revolution, however, it is useful to turn first to
its prehistory, to the various strands of international law from which this new
tapestry was woven. The human rights revolution did not appear suddenly
full-grown, like Minerva springing from Jupiter's head. Its main substantive
rules and its procedural safeguards can be traced back many centuries, to the
origin of international law itself.
[*2]
A. The Origins of the Human Rights Revolution
The oldest method of protecting the rights of individuals was
self-help, not only by the victim, but also by his family, his clan, his nation,
and ultimately his sovereign or state. The Bible documents numerous applications
of the old adage "an eye for an eye, a tooth for a tooth," or, more often, a
life for a life. This rule also was applied in medieval times, as illustrated in
Shakespeare's Romeo and Juliet. Even in modern times there have been
family feuds in such places as Sicily and Corsica; in the United States, the
Hatfields and McCoys only recently stopped killing one another.
A similar problem arose very early in the international field. Citizens
travelling in a foreign country were robbed, enslaved, or killed, sometimes by
bandits, sometimes by the feudal lords through whose domains they travelled, or
by the soldiers of the country's ruler, for whom a foreigner was fair game, a
source of combat booty even if the two countries were not at war. Similarly,
mariners frequently looted foreign ships travelling on the high seas.
Two sets of rules quickly emerged. First, a state was
responsible for what happened within its territory and for its citizens' conduct
on the high seas, and, second, the foreigner's home state was entitled to demand
reparations for any resulting injury to its citizens. A citizen, especially a
merchant, was a valuable asset, and those who damaged that asset diminished the
wealth of the foreign prince. Accordingly, the perpetrators were responsible to
him as though they had injured a member of his family. If the persons
responsible for the injury were not forced to pay for the damage, or if their
ruler refused to take action, international responsibility did arise. The
foreign ruler, his assets, and his citizens were deemed to be collectively
responsible for the damage to the foreign citizen; as a first step, the victim's
ruler was entitled to authorize the victim, his family, or his partners in the
commercial venture to use self-help against the other country and its citizens.
The ruler issued letters of marque and reprisal authorizing the capture of
vessels or cargoes belonging to the state responsible for the wrong.
To mitigate the harshness of this rule, several procedural
safeguards were soon devised. Prior to asking his sovereign for letters of
reprisal, a citizen had to attempt to obtain justice from the government of the
country in which the damage had occurred or whose citizens inflicted the injury.
Only when justice was denied and further complaints by his sovereign were
rejected did reprisals come into play. When capturing the foreign country's
ships on the high seas, the victim was entitled to take only what was due to
him. Some countries, especially France and Great Britain, required strict
accounting to the government that issued [*3] the letters of marque
and reprisal. n1
The mitigating procedure of
international law developed as early as 450 B.C., in the Greek treaty between
Oeantheia and Chalaeum, two cities on the Gulf of Corinth. This treaty permitted
capture only on the high seas, not in or near a port. n2 The idea of exhaustion
of local remedies and denial of justice can be traced at least to the ninth
century, for example, to the treaties between Naples and Benevent in 836 and
between Emperor Lothar I and Venice in 840. n3 Later treaties exempted certain
categories of foreign citizens from reprisals, including scholars, students, and
merchants attending fairs. This method of law enforcement lasted until the
nineteenth century; as late as 1858, in the Aves Island case, the United
States threatened to issue letters of reprisal against Venezuela if the latter
continued to deny justice. n4
The next steps were
removal of self-help from private hands and centralization of that power in the
government. When injury was inflicted on citizens of a country, that country
blockaded the wrongdoer's ports, and, if necessary, occupied a part of the
country, in order to encourage settlement of the dispute. For example, in 1850
Great Britain blockaded Greece in order to obtain satisfaction for the claims of
two men, MM. Finley and Pacifico; n5 in 1902 Germany, Great Britain, and Italy
blockaded the coast of Venezuela and forced that country to accept an
international arbitration of their citizens' claims arising from the Venezuelan
civil war. n6
[*4] In some of these cases,
settlement of the injured citizens' claims was imposed by force on the state
held responsible for the injuries. In other cases, the matter was submitted for
a binding decision to an international claims commission or an arbitral
tribunal. Thus, the third stage, decision by an international court of disputes
about violations of foreign citizens' rights, was reached. The Permanent Court
of International Justice, established in 1920, as well as its successor, the
International Court of Justice, established in 1945, heard a number of cases
involving private rights. As the Permanent Court of International Justice
stated, however, "[o]nce a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of the latter, the State
is sole claimant." n7 Thereafter, the state is said to be "asserting its own
rights -- its right to ensure in the person of its subject, respect for the
rules of international law." n8
Nevertheless, the
burden of exhausting local remedies remained with the private claimant. Until he
had exhausted the local remedies, his state was not entitled to bring an
international claim. In the words of the International Court of Justice: "[T]he
State where the violation has occurred should have an opportunity to redress it
by its own means, within the framework of its own domestic legal system." n9 As
will become evident below, the principle of exhaustion of local remedies has
been incorporated into the new law of human rights; a claimant must exhaust
local remedies without being adequately satisfied before seeking redress on the
international plane.
In principle, international law
has long been concerned only with the violation of foreigners' rights. In a few
special situations, however, international protection has been given to citizens
suffering from domestic persecution. Tyrannical conduct of a government towards
its subjects and gross mistreatment of national or religious minorities have
occasionally [*5] reached a level at which intervention in the name
of humanity was considered permissible. The idea of humanitarian intervention
was familiar even in ancient China, where Mencius supported the notion of
liberation from tyrants. n10 In the era of enlightenment, Emerich de Vattel
stated in his Le Droit des Gens that if "persecution is carried out to an
intolerable degree . . . all Nations may give help to an unfortunate people."
n11
Humanitarian intervention has occurred in cases of
persecution of minorities, especially in the Middle East. Thus, in 1860 the
major European powers forced Turkey to accept intervention, "in the name of
Europe," by French military forces to protect the Christian population in
Lebanon against massacres by the Druses. n12 Atrocities in Bulgaria in the
1870's led to Russian intervention, and in the 1878 Treaty of Berlin, Turkey
accepted special provisions for the protection of minorities. n13
A recurring claim, which has been made with some
justification, is that countries that engaged in "humanitarian" intervention
were motivated more by a desire to establish spheres of influence or to obtain
commercial advantages than by an altruistic motive to alleviate human suffering.
In addition, a familiar argument is that humanitarian intervention, being
available only to major powers, created a one-sided relationship, without
possibility of reciprocal action by the smaller powers. n14
Consequently, when the map of Eastern Europe was redrawn after the
First World War, responsibility for the protection of minorities was taken out
of the hands of major powers and transferred to the League of Nations. In his
famous 1919 letter to the Polish Government, Georges Clemenceau explained that
the Great Powers would no longer use the right to intervene for political
purposes; henceforth, the League of Nations would guarantee certain essential
rights of minorities in Eastern Europe. n15
The League
of Nations' system of minority protection functioned well for fifteen years.
Nevertheless, with the advent of the Nazi regime in Germany and its barbaric
treatment of minorities, the neighboring countries objected that they alone were
bound by minority-protection [*6] obligations, while the major
powers had no similar responsibilities. n16 After the Second World War,
therefore, an attempt to revive the minority- protection treaties and to vest in
the United Nations the authority to guarantee rights under these treaties did
not succeed. n17 Instead, a broader system of protection for human rights was
established, with the expectation that it would be applied to all human beings,
in large and small countries alike. n18
Reflections of the earlier protection methods origins in modern
law
The traditional systems of protecting
foreigners and minorities have not disappeared completely. In recent years, the
protection of foreigners and minorities has become a major concern of the
international community. Many of the procedural rules that were developed for
the protection of foreigners and minorities have found their way into the
systems of protection of human rights established after 1945. In addition, a
comparison of the rules of substantive law applied by international arbitral
[*7] tribunals and claims commissions in the past two centuries with
those embodied in recent instruments on human rights clearly demonstrates that
the new rules owe their content not only to domestic constitutional provisions
but also to international jurisprudence. This is especially true in such areas
as arbitrary arrest, mistreatment of prisoners, access to courts, and adequacy
of judicial proceedings. Of course, as will be seen, the new international law
of human rights extends far beyond the areas traditionally considered proper for
international claims.
Similarly, there has been some
incorporation of the concept of humanitarian intervention into the United
Nations' system. After some hesitation, the United Nations agreed that in cases
of gross and persistent violations of human rights as a matter of national
policy, as in the case of South African apartheid, the United Nations can deal
with the matter regardless of the provision in the U.N. Charter that prohibits
the United Nations from "interven[ing] in matters which are essentially within
the domestic jurisdiction of any state." n19 Gross violations of human rights
are now considered to be matters of international rather than domestic concern,
and to represent possible threats to the peace, thus allowing the United Nations
to go beyond mere condemnation and to impose sanctions against a violator if
necessary. n20 Collective intervention by regional organizations also has been
allowed on some occasions, most recently in Chad. n21
Still open to question is whether the U.N. Charter permits military
[*8] intervention by a state in another state to protect its own
citizens or the local population against gross violations of human rights. n22
Although many scholars and U.N. statements condemn such unilateral humanitarian
intervention, some scholars and governments read narrowly the United Nations'
prohibition against the use of force. According to this view, such action is
either a species of self-defense n23 -- especially when uncontrolled mobs attack
nationals of another state -- or is permissible under article 2(4) of the U.N.
Charter if it is interpreted to prohibit only the use of force "against the
territorial integrity or political independence of any state" n24 and to allow
the use of force in any manner consistent with the purposes of the United
Nations. Proponents of this view point out that humanitarian intervention has a
limited purpose and does not impair the territorial integrity or political
independence of any state; n25 the intervening state withdraws after
accomplishing its purely humanitarian aim, leaving the territory intact and the
government independent. At the same time, it is claimed that intervention to
protect human rights cannot be considered contrary to the purposes of the United
Nations, one of which is promotion of human rights. n26
On the other hand, several instruments construing the U.N. Charter have
restrictively interpreted its provisions regarding the use of force by one state
against another. For instance, the Declaration on Principles of International
Law Concerning Friendly Relations and Co-operation Among States, n27 adopted
unanimously by the General Assembly in [*9] 1970, makes clear that
no state or group of states "has the right to intervene, directly or indirectly,
for any reason whatever, in the internal or external affairs of any other
State." The prohibition against intervention "for any reason whatever" was
designed to make clear that even the best possible reason, such as protection of
human rights, does not justify unilateral intervention in the affairs of another
state. n28
B. The Human Rights Revolution: The
Aftermath of the Second World War
1.
Effect of the Second World War
Returning now to the
position of individuals in international law in 1945, it is quite clear that
apart from a few anomalous cases, in which individuals were allowed to vindicate
their rights directly on the basis of a special international agreement,
individuals were not subjects of rights and duties under international law. They
merely benefited indirectly from the rule that a state could consider any injury
to its citizen as an injury to itself and therefore could attempt to obtain
reparation for it. Once a state received compensation from another state for the
injury to its citizen, however, it had no duty under international law to
transfer that compensation to the citizen; if, for economic or political
reasons, the state relinquished the claim or settled it for some small
percentage of its original amount, its citizen was deprived of further recourse
against the offending state. Thus, a person's protection depended on the conduct
of his state, and stateless persons were entitled to no protection
whatsoever.
At the same time, a state's own citizens
were almost completely at its mercy, and international law had little to say
about mistreatment of persons by their own government. As noted above,
humanitarian intervention by another state, if not completely illegal, was often
attributable to political or economic interests rather than concern about human
rights. In many instances, such interventions resulted in the imposition of
colonial rule. Although perhaps more humane, colonial rule was seldom considered
by the people concerned as an improvement over the prior government.
At the termination of the Second World War, two events
completely changed the status of individuals under international law. Both were
closely connected with Nazi actions and with other atrocities committed before
and during the war. The first event was the punishment of war [*10]
criminals at Nuremberg and Tokyo; the second was the desire to prevent the
recurrence of such crimes against humanity through development of new standards
for the protection of human rights.
The war crimes
tribunals n29 made it clear that those who committed atrocities against civilian
populations of occupied countries were not entitled to invoke as a defense
either that they acted for the state or that they merely followed the orders of
their superiors. n30 The tribunals pointed out that international law was not
concerned solely with the actions of sovereign states, but "impose[d] duties and
liabilities upon individuals as well as upon states." n31 The General Assembly
of the United Nations later affirmed these Nuremberg principles. n32 The
International Law Commission incorporated a further formulation of the
principles into a "code of offenses against the peace and security of mankind."
n33 The final preparation of that code was delayed by disagreement over a
definition of aggression, but efforts toward completion of the code were renewed
after the U.N. General Assembly approved by consensus a definition of
aggression. n34 At that time it was once again made clear that wars of
aggression are crimes against international peace, and therefore give rise to
international responsibility. Although [*11] work in this area
remains incomplete, there can no longer be doubt that individuals are punishable
for committing the crime of war, or war crimes, or crimes against humanity. In
addition, the international community is concerned with such new international
crimes as apartheid, terrorism, hijacking, crimes against foreign diplomats, and
first use of nuclear weapons. n35
2.
Codification of the newly recognized human rights
In a parallel development, individuals gained rights under
international law and, to some extent, means for vindication of those rights on
the international plane. This development entailed four different law-building
stages: assertion of international concern about human rights in the U.N.
Charter; n36 listing of those rights in the Universal Declaration of Human
Rights; n37 elaboration of the rights in the International Covenant on Civil and
Political Rights n38 and in the International Covenant on Economic, Social and
Cultural Rights; n39 and the adoption of [*12] some fifty additional
declarations and conventions concerning issues of special importance, such as
discrimination against women, racial discrimination and religious intolerance.
n40 The pyramid of documents, with the Charter at its apex, has become a
veritable internationalization and codification of human rights law, an
international bill of human rights much more detailed than its French and
American counterparts.
Although the existence of the
norms embodied in these documents cannot be denied, controversy has been raging
for almost forty years about their binding character and practical effect. It
has been argued, in particular, that most of these documents are "soft law," or
even "normes sauvages," rather than "hard law." According to this view, these
documents contain no more than mere guidelines, which states need not follow.
Furthermore, there are no effective means of implementing the documents, and
violators go unpunished. The better view is that these documents have become a
part of international customary law and, as such, are binding on all states.
Some of the documents provide appropriate means of implementation, leading to a
proper condemnation of violators. Although punishment does not always result,
international law as a whole suffers from the same shortcoming because methods
of enforcement are still deficient.
It is difficult to
proceed against great sovereign states, and even more difficult to punish them
in any meaningful fashion. States function through individuals, however, and
eventually means are likely to be found to punish those who are truly
responsible for a state's misbehavior. Although law ideally treats all parties
equally, it is well known that the legal enforcement system is less effective
against those who are powerful than with respect to those who are poor and weak.
Victor Hugo described this in his great romances, The Count of Monte
Cristo and Les Miserables. Emile Zola and Charles Dickens observed
that even domestic law is imperfect in this respect. n41 It is also well known
that federal [*13] states have difficulty keeping their member
states in line, except through a disastrous civil war, which the United States
and Switzerland, for example, had to survive before they were able to impose the
law on dissenting states or cantons. Similarly, powerful multinational
corporations and great transnational consortia often have been able to act
outside the law, with only minor punishments. Once governments became willing to
enforce stronger sanctions, punishing responsible officers as well as the
corporations themselves led to more cautious attitudes.
On the international scene, it is difficult to persuade governments,
which as a group are the international lawmakers, to agree on enforcement
against themselves in the event that they violate international law. It is not
the law that is soft, but the governments. Usually hiding behind the vital
interests of the state, "raison d'etat," they find it difficult to declare
punishable an act that they may some day wish to commit. Nevertheless, the world
has seen recently in the United States that even a powerful President may be
forced to resign if it is apparent that he has committed gross violation of the
law. In other countries, the same result is often achieved by revolution; it is
often forgotten that revolution is an effective sanction. The Universal
Declaration of Human Rights pointedly notes in its preamble that "it is
essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected
by the rule of law." n42
i. The U.N. Charter
Although it may be fashionable to disparage the Charter of
the United Nations and bemoan its ineffectiveness, most detractors of the
Charter have not reviewed it carefully enough and, thus, do not know clearly
what it contains. This constitution of the world, the highest instrument in the
intertwined hierarchy of international and domestic documents, prevails
expressly over all other treaties, and implicitly over all laws, anywhere in the
world. n43 The Charter was not meant to be a temporary document, to be easily
and perpetually amended, but, rather, to be a lasting expression of the needs of
humanity as a whole. Its basic provisions, constituting the jus cogens,
the practically immutable law of [*14] the international community,
are broad in scope and sufficiently flexible to permit their interpretation to
be adjusted to the needs of each generation. Although the wording of the Charter
has changed little since its inception -- only with respect to the membership of
its two executive organs -- the meanings of several provisions have been greatly
expanded in practice by commonly accepted interpretations.
As nature abhors a vacuum, constitutional documents abhor
strait-jackets. Great ideas cannot be imprisoned; they must be able to move
freely from one part of the earth to another. The U.N. Charter contains several
such ideas, which revolutionized the world, although no one knew in 1945 how
successful the drafters of the Charter would be in planting in that document the
seeds from which many mighty trees would grow.
The most
influential of these ideas are that human rights are of international concern,
and that the United Nations has the duty to promote "universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language and religion." n44 Although these two ideas were born
out of the disasters of the Second World War, they are even more meaningful
today than at the time they were first formulated. It is our common duty not
only to respect human rights ourselves but also to promote their "universal
respect" and to ensure that they are observed throughout the globe. All members
of the United Nations -- not only the original 50, but the more than 150 members
today -- have pledged to "take joint and separate action," in cooperation with
the United Nations for the achievement of these great purposes. n45 In the
Charter's preamble, the peoples of the United Nations as well as their
governments, have reaffirmed their "faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women and
of nations large and small." n46 In that statement the authors of the Charter
anticipated not only the racial revolution, but also the feminist revolution and
the need to provide for equality notwithstanding gender. They did not
anticipate, however, that more than one hundred nations, most of them small,
would clamor for equality with the fifty nations that dominated the world in
1945.
ii. The Universal Declaration of Human
Rights
Although the U.N. Charter mentions human
rights in many places, time constraints at the San Francisco conference made it
impossible to [*15] prepare a more detailed document paralleling the
national bills or declarations of the rights of man and of the citizen. It was
promised at that time, however, that the United Nations would commence the
drafting of an International Bill of Rights as one of the first items of
business. The Commission on Human Rights was established in 1946, only a few
months after the Charter came into force, and was asked to prepare such a
document. n47 It soon became obvious that the task could take a long time and,
in view of the urgency of the matter, that the first step should be a
declaration of general principles, to be followed later by a document containing
more precise obligations.
Two years later the first
document -- the Universal Declaration of Human Rights n48 -- was ready. On
December 10, 1948, the General Assembly, after some amendments, approved it
unanimously, with eight abstentions: the Soviet bloc, Saudi Arabia, and the
Union of South Africa. Although some delegations emphasized that the Universal
Declaration of Human Rights was not a treaty imposing legal obligations, n49
others more boldly argued that it was more than an ordinary General Assembly
resolution, that it was a continuation of the Charter and shared the dignity of
that basic document. It merely expressed more forcefully rules that already were
recognized by customary international law. Under the latter view, the
Declaration would possess a binding character. n50 In particular, Professor
Cassin, one of the principal authors of the Declaration, explained that the
Declaration was "destined to guide Governments in the determination of their
policy and their national legislation," that it "could be considered as an
authoritative interpretation of the Charter of the United Nations and as the
common standard to which the legislation of all the Member States of the United
Nations should aspire," and that it "was a development of the Charter which had
brought human rights within the scope of positive international law." n51 The
Declaration itself proclaims that it is "a common standard of achievement for
all peoples and all nations." It exhorts every individual and every organ of
society to strive, "by progressive measures, national and international, to
secure . . . universal and effective recognition and observance [of the rights
and freedoms therein]." n52
[*16] Even if
governments and scholars were originally in disagreement regarding the
importance, status, and effect of the Universal Declaration, practice in the
United Nations soon confounded the doubters. Several of the governments that
originally were skeptical about the value of the Declaration did not hesitate to
invoke it against other countries. Thus, the United States invoked it in the
so-called Russian Wives Case, and the General Assembly declared that
Soviet measures preventing Russian wives from leaving the Soviet Union in order
to join their foreign husbands were "not in conformity with the Charter," citing
articles 13 and 16 of the Declaration in support of its conclusion. n53 The
Soviet Union, which originally claimed that the Declaration violated the
Charter's prohibition against interference in a state's internal affairs, later
voted for many resolutions charging South Africa with violations of the
Universal Declaration. n54
The obligation of all states
to observe the Universal Declaration fully and faithfully was confirmed by two
other unanimously adopted declarations, one relating to the granting of
independence to colonial territories and the second to the elimination of racial
discrimination. n55 These declarations were followed, on the twentieth
anniversary of the Universal Declaration in 1968, by the Declaration of Teheran,
n56 in which the International Conference on Human Rights proclaimed that the
Declaration "states a common understanding of the peoples of the world
concerning the inalienable and inviolable rights of all members of the human
family and constitutes an obligation for the members of the international
community." n57 More recently, in the Helsinki Final Act, n58 the participating
States of Western Europe, North America, and Eastern Europe agreed that in the
field of human rights they "will act in conformity with the purposes and
principles of the Charter of the United Nations and with the Universal
Declaration of Human Rights." n59
The Declaration thus
is now considered to be an authoritative interpretation of the U.N. Charter,
spelling out in considerable detail the meaning of the phrase "human rights and
fundamental freedoms," which Member States agreed in the Charter to promote and
observe. The Universal Declaration has joined the Charter of the United Nations
[*17] as part of the constitutional structure of the world
community. The Declaration, as an authoritative listing of human rights, has
become a basic component of international customary law, binding on all states,
not only on members of the United Nations. Another revolutionary step thus has
been taken in protecting human rights on a worldwide scale.
II. THE PROMOTION AND PROTECTION OF CIVIL AND POLITICAL RIGHTS OF
INDIVIDUALS
A. The Nature of "Human Rights"
Up to this point it has been assumed that "human rights"
is a wellknown concept and does not require detailed explanation. That
assumption is, however, confronted by two problems. First, the theoretical
nature of human rights has been debated fiercely, without resolution, since
ancient time. In the play Antigone, Sophocles described Antigone's
dilemma when King Creon prohibited the burial of her brother, who had been
killed while rebelling against the King. When she was arrested for violating
that order, she defended her action by claiming that the King could not override
the "immutable, unwritten laws of heaven." The King replied that traitors must
be punished; a state must have laws and they must be obeyed in all things, just
and unjust alike; otherwise, there will be anarchy, and there is no evil worse
than anarchy.
Similary, when rebelling against the
English King, the American revolutionaries in 1776 relied in their Declaration
of Independence on the concept of "inalienable rights" endowed by their Creator.
In the same spirit, the French National Assembly in 1789 set forth in the
Declaration of the Rights of Man and of the Citizen "the natural and
imprescriptible rights of man." n60 More recently, Jacques Maritain pointed
out:
[The] human person possess[es] rights because of
the very fact that it is a person, a whole, a master of itself and of its acts .
. . by virtue of natural law, the human person has the right to be respected, is
the subject of rights, possesses rights. These are things which are owed to a
man because of the very fact that he is a man. n61
The
United Nations' concept of human rights embraces this natural law concept of
rights, rights to which all human beings have been entitled since time
immemorial and to which they will continue to be entitled as long as humanity
survives. Thus, both the Universal Declaration of Human Rights and the two
Covenants assert in the first paragraphs [*18] of their preambles
that "recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world." n62 More recently, in specifying the guiding concepts
for future human rights work within the United Nations' system, the General
Assembly listed among those concepts the natural law idea that "[a]ll human
rights and fundamental freedoms of the human person and of peoples are
inalienable." n63
These "inalienable" rights, both
permanent and universal, differ from rights, bestowed by positive law, that a
state can give and take away. The distinction between these two categories of
rights becomes evident when a state attempts to limit human rights in the
interest of the community during an emergency. Thus, the International Covenant
on Civil and Political Rights permits states to derogate from certain of its
provisions when a public emergency threatens the life of the nation; n64 in
contrast, the Covenant does not permit derogation from certain inalienable
rights, including the right to life, freedom from torture or cruel, inhuman, or
degrading treatment or punishment, freedom from slavery and servitude,
nonapplicability of retroactive laws, right to recognition as a person before
the law, and the right to freedom of thought, conscience, and religion. n65 No
state is allowed to deprive individuals of these inalienable rights; such rights
are part of a higher law that no positive law can overrule.
There are two other categories of rights: first, those which a state
can limit in times of emergency, such as freedom from compulsory labor, right to
liberty and security of person, right to humane treatment in prison, right to
certain minimum guarantees in criminal proceedings, and freedom from
interference with privacy, family, home, or correspondence; and, second, those
which the state can limit in order to protect national security, public order
(ordre public), and public health or morals. The second category includes
the following rights listed in the Covenant on Civil and Political Rights: the
right to liberty of movement; the freedom to choose one's residence; the right
to a public hearing; freedom to manifest one's religion or beliefs in public;
freedom of expression and to seek, receive, and impart information and ideas,
orally or in print; right of peaceful assembly; and freedom of association. n66
Of the rights listed in the International Covenant on Economic, Social and
Cultural Rights, [*19] only the rights relating to trade unions are
subject to similar restrictions. n67 Other rights arising under that Covenant
can be limited solely "for the purpose of promoting the general welfare in a
democratic society." n68
Some scholars may find these
differentiations petty. Nevertheless, they show the marriage of positivist and
natural law doctrines, the positive law helping to enforce natural law
distinctions.
B. The International Covenants:
Overview
When the Commission on Human Rights
finished the Universal Declaration, it began preparing the other part of the
International Bill of Rights, a convention containing precise obligations that
would be binding on the States Parties. There were initial fears that the
various rights would drown in a sea of limitations and exceptions, but this
danger was avoided by careful delineation of the conditions under which rights
could be limited, and identification of those rights that could not be limited
under any circumstances. Another difficulty did, however, arise. It proved
impossible to formulate in a parallel manner all the rights listed in the
Universal Declaration; it became necessary to divide the materials into two
categories: civil and political rights; and economic, social, and cultural
rights. n69 These two categories were embodied in two separate Covenants -- a
name that was preferred to the less solemn "convention" -- each differing from
the other in several respects. The main difference was in their treatment after
coming into force. States Parties were to give the Covenant on Civil and
Political Rights immediate effect through appropriate legislative or other
measures and by making available an effective remedy to any person whose rights
have been violated. n70 In contrast, each State Party to the Covenant on
Economic, Social and Cultural Rights agreed only to take steps, to the maximum
of its available resources, toward a progressive realization of the rights
recognized in that Covenant. n71 The Covenant thus contained a loophole: because
a state's obligation was limited to the resources available to it, a
[*20] poor state could proceed slowly, progressing only as fast as
its resources permitted. If its resources should diminish, for example, during
an economic crisis, its progress could wane. In contrast, the Covenant on Civil
and Political Rights permits no such excuses; a state must guarantee civil and
political rights fully on ratification, n72 subject only to the limitations
previously discussed. n73
Although doubts have been
expressed about the legal force of the Declaration, n74 the Covenants are now
binding on more than seventy states, n75 almost half of the members of the world
community. Among the parties to the Covenants are states from all regions:
Africa, Asia, the Americas, Western Europe, and Eastern Europe. Among members of
the European Community, Denmark, France, the Federal Republic of Germany, Italy,
the Netherlands, and the United Kingdom have ratified the Covenants. These
states are also parties to the 1950 European Convention on Human Rights, n76
which contains provisions parallel to those in the Covenant on Civil and
Political Rights. Two special institutions, the European Commission of Human
Rights and the European Court of Human Rights, n77 have developed considerable
jurisprudence with respect to the European Convention. There are almost daily
press releases about cases submitted or decided. In Europe, international
decisions on human rights issues thus have become routine; they are no longer
extraordinary occurrences.
This European jurisprudence
throws light not only on the provisions of the European Convention, but also on
the similar provisions in the Covenant on Civil and Political Rights. In a
discussion of the Covenant, therefore, it might be useful to refer occasionally
to the European experience under the Convention. There is also a well-developed
inter-American system of human rights, based on the American Convention on Human
Rights, n78 which entered into force in 1978. The most recent addition to the
family of regional human rights instruments is the African [*21]
Charter on Human and Peoples' Rights, n79 approved in 1981.
Another general point must be made. Although the rights protected by
the Covenants are stated with greater precision than those listed in the
Universal Declaration, the former are broad enough in scope to surmount
differences among various political, economic, and social systems, as well as
among widely differing cultures and stages of development. Consequently, only
the last factor -- differences in stages of development, especially economic
development -- need be taken into account in applying the Covenant on Economic,
Social and Cultural Rights. In contrast, even that factor does not excuse
nonimplementation of the Covenant on Civil and Political Rights.
The Covenants and national constitutions or laws are meant to coexist.
The Covenants do not supersede any constitutions or laws that provide more
protection to individuals. n80 Where the Covenants go beyond a domestic law in
protecting a particular right, the state concerned has the duty to adopt any
additional legislative or other measures that may be necessary to give effect to
the right recognized in the Covenants. n81
C. The
International Covenant on Civil and Political Rights
1. Implementation of the Covenant on Civil and Political
Rights
The Covenant on Civil and Political Rights
is to be implemented through a combination of international and domestic law.
Its enforcement relies in the first place on national institutions, as each
State Party has the duty to ensure that any person whose rights under the
Covenant have been violated has an effective remedy against the violator and the
access for that purpose to appropriate judicial, administrative, or legislative
[*22] authorities. n82
The Covenant on
Civil and Political Rights also provides for international implementation
measures. The Covenant not only requires States Parties to present periodic
reports on the progress made in enjoyment of the rights recognized in the
Covenant, n83 but also provides for a Human Rights Committee with jurisdiction
over complaints by one state that another state has not fulfilled its
obligations under the Covenant. n84 This jurisdiction can, however, be exercised
only if both states previously have accepted the competence of the Committee to
receive such complaints. n85 Fourteen countries have accepted this jurisdiction,
including the Federal Republic of Germany and the United Kingdom. n86
Twentyseven states, almost double the number of those that have accepted
interstate jurisdiction, have accepted another implementation measure, an
optional protocol allowing individuals claiming to be victims of a violation of
the Covenant to present to the Human Rights Committee communications against the
state responsible. n87 Both of these new international remedies are subject to
one of the oldest rules in the area of state responsibility: a complaint or
communication can be presented only when all available domestic remedies have
been exhausted and redress has not been obtained. n88
The guarantees in the Covenant on Civil and Political Rights are
designed primarily to protect individuals against arbitrary government action
and to ensure individuals the opportunity to participate in government and other
common activities. Promotion and protection of human rights not only leads to
good government, but is "the foundation of freedom, justice and peace in the
world." n89 To ensure these common ideals, the Covenant was designed to help
states improve their domestic [*23] laws and institutions so that
human rights would be protected throughout the world. Although the Covenant
relies primarily on domestic remedies, it also recognizes the new international
status of individuals and gives them access to an international committee, at
least against those states that have accepted the optional protocol. As noted
earlier, one-sixth of all the states in the world have accepted this direct
method of international vindication of individual rights. n90 In addition,
almost half of the members of the world community have, by becoming parties to
the Covenant, accepted the new international rule that individuals are not mere
objects of the provisions of the Covenant but have direct rights under that
instrument and ultimately may be able to enforce these rights. Another
revolutionary step has thus been taken.
At the same
time, because individuals' rights are embodied in an international instrument,
other States Parties are entitled to demand that it be implemented properly. No
longer is an individual's international protection limited to the state of his
nationality and subject to its whims. Now, for the first time, any among the
more than seventy States Parties can complain that another state has violated
the rights of one of its own citizens. Although similar opportunities had been
available in the past, never before have they occurred on such a grand scale.
Any state can now become an international ombudsman, protecting human rights
anywhere for purely humanitarian reasons, without any ulterior motives. No
longer is this right to intervene on behalf of a victim of a human rights
violation limited to great powers. Any state, however small and weak, can bring
the matter before an international body and demand justice. In particular, the
Scandinavian countries, in which the idea of an ombudsman originated, have begun
to act as ombudsmen in the international arena. The 1967 case that Denmark,
Norway, Sweden, and the Netherlands brought before the European Commission of
Human Rights against Greece is an example of such international humanitarian
statesmanship. n91
2. Substantive provisions
of the Covenant on Civil and Political Rights
The
Covenant embodies several groups of rights. These rights appear in the Covenant
in no particular order, although some of the "natural" rights, long recognized,
are given some priority. Thus, the Covenant appropriately begins with safeguards
relating to the right to life, the physical integrity of a person, the freedom
from slavery and forced labor, the freedom from arbitrary arrest, the freedom
from torture or [*24] cruel, inhuman, or degrading treatment or
punishment, and the right to a fair and prompt criminal process, with all
necessary safeguards for the individual's right to an adequate defense. n92
Another group of rights concerns the freedom of movement
and residence and the right to leave and to reenter one's own country. Although
an alien can be expelled from a country, the Covenant provides some procedural
safeguards against arbitrary state action. n93 Family rights are protected by a
succinct provision specifying that no one should be subjected "to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour or reputation." n94 Other family rights relate to
marriage and the status of children. n95 Additional provisions concerning
families may be found in the Covenant on Economic, Social and Cultural Rights.
n96 The Covenant on Civil and Political Rights also protects a group of
traditional political rights, which includes the freedoms of thought,
conscience, expression, assembly, and association, and the rights to participate
in public affairs, to vote, and to be elected. n97
Although the Universal Declaration contained a provision on an
individual's right to own property and not to be arbitrarily deprived of it, n98
the great differences among states on this issue precluded inclusion of a
similar provision in the Covenant on Civil and Political Rights. It may be noted
that the 1950 European Convention originally did not contain any provision on
the subject, but Protocol No. 1 to the Convention n99 remedied this defect in
1952 by adding the provision that no one may be deprived of his possessions
"except in the public interest and subject to the conditions provided for by law
and by the general principles of international law." n100 Unfortunately,
although the European and North American countries may be in agreement as to
what these principles are, [*25] much of the rest of the world seems
to disagree. n101
i. Protections against
discrimination
The Covenant on Civil and Political
Rights contains several frequently repeated themes. One of them has its origin
in the Charter of the United Nations. The Covenant, in a manner similar to but
more expansive than the U.N. Charter, requires the protection of individuals'
rights "without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status." n102 In addition, the Covenant contains a special undertaking
"to ensure the equal rights of men and women to the enjoyment of all civil and
political rights." n103 All persons are equal before the law and are entitled
without discrimination to the equal protection of the law. n104 In particular,
all persons shall be equal before the courts and tribunals, and all shall have
the right to recognition as persons before the law. n105 There shall be equality
of rights and responsibilities of spouses "as to marriage, during marriage and
at its dissolution." n106
To promote racial equality,
the U.N. General Assembly approved in 1965 a separate Convention on the
Elimination of Racial Discrimination. n107 More than 100 countries have accepted
this Convention, n108 which prohibits discrimination based on "race, colour,
descent, or national or ethnic origin," n109 but does not apply to distinctions
between citizens and noncitizens. n110 It allows special measures necessary to
ensure that groups adequately advance toward equality. n111 States Parties are
obliged to prevent not only governmental discrimination, but also discrimination
"by any persons, group or organization." n112 The Convention [*26]
explicitly catalogues a long list of rights that are to be protected, including
the right to nationality and the right to inherit. n113
The Covenant on Civil and Political Rights protects freedom of religion
and the right to worship in public or private. These religious rights are
subject to such limitations as may be "necessary to protect public safety,
order, health or morals or the fundamental rights and freedoms of others." n114
In 1981, after a long period of preparation, the General Assembly approved a
Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief. n115 The Declaration guarantees, inter alia, the
following freedoms: to worship or assemble in connection with a religion or
belief, and to establish and maintain places for these purposes; to establish
and maintain appropriate charitable or humanitarian institutions; and to train,
appoint, elect, or designate by succession appropriate leaders as required by
any religion or belief. n116 All such rights, however, are subject to
limitations similar to those specified in the Covenant on Civil and Political
Rights. n117
The Covenant does not recognize the
collective rights of ethnic, religious, or linguistic minorities, but it does
prohibit States Parties from denying to persons belonging to such minorities
"the right, in community with the other members of their group, to enjoy their
own culture, to profess and practice their own religion, or to use their own
language." n118 This right is rather limited, and the more controversial issue
of minorities' rights to self-determination will be discussed separately.
n119
The area of discrimination on the basis of gender
has also been of great concern to the United Nations. The U.N. Committee on
Human Rights, charged with the implementation of the Covenant on Civil and
Political Rights, has noted that the relevant provision of the Covenant requires
"not only measures of protection but also affirmative action designed to ensure
the positive enjoyment of rights." n120
[*27] The United Nations has adopted, in addition to the
Covenant, several instruments of special interest to women. There are, first,
several general antidiscrimination conventions that protect women as well as
other groups. For example, the International Labour Organisation (ILO) adopted
the Convention concerning Discrimination in respect of Employment and Occupation
n121 in 1958, and the United Nations Educational, Scientific and Cultural
Organization (UNESCO) adopted the Convention against Discrimination in Education
n122 in 1960. Second, there are several special instruments dealing explicitly
with women's rights, such as the 1951 ILO Convention concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value, n123 the 1952
United Nations Convention on the Political Rights of Women, n124 the 1957 United
Nations Convention on the Nationality of Married Women, n125 the 1962 United
Nations Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriage, n126 and the 1979 United Nations Convention on the
Elimination of All Forms of Discrimination against Women. n127 These steps,
designed to provide equality for half of the human race and thus to overcome
prejudices accumulated over many centuries, are as revolutionary as the granting
[*28] of independence to more than one hundred countries in the
world, and were taken in a mere thirty years.
ii.
Protections against arbitrary governmental actions
The other important theme of the Covenant is the protection of the
individual against the arbitrary acts of a government. n128 The substantive part
of the Covenant begins with the statement that no one shall be "arbitrarily
deprived of life"; n129 and, in particular, that a state should not condemn a
person to death except for the most serious of crimes. n130 In addition, states
should not impose a death sentence on persons below eighteen years of age, or
carry out such a sentence on pregnant women. n131 Similarly, under the Covenant
no one shall be subjected to "arbitrary arrest or detention"; n132 a person can
be deprived of liberty only on such grounds and in accordance with such
procedures as are established by law; n133 an arrested person is entitled to
trial or release within a reasonable period of time; n134 a person claiming
unlawful arrest or detention is entitled to have a court decide that issue; n135
and if the arrest or detention is found to have been unlawful, the individual is
entitled to compensation. n136 The European Court of Human Rights has held
prolonged detention to be unlawful and has granted compensation in several
cases. n137
The Covenant prohibits a state from
arbitrarily depriving a citizen of the right to enter his own country. n138 The
European Commission of Human Rights has found that some states do not have
sufficient procedural safeguards against immigration officers' arbitrary refusal
of admission, and the states concerned have agreed to make the necessary changes
in their laws and regulations. n139
In addition to
protecting individuals against arbitrary governmental acts in the public sphere,
the Covenant protects against arbitrary governmental conduct in an individual's
private domain. A state may not [*29] interfere with the privacy of
an individual or his family, home, or correspondence in an arbitrary or unlawful
manner. n140
The crucial word in each of these
provisions is "arbitrary." During the drafting of the Covenant, various views
were expressed regarding the meaning of this word. Some participants thought
that the word meant "illegal," "without legal grounds," or "without due process
of law"; according to that view, any act authorized by law and performed in
accordance with prescribed procedural safeguards should not be considered
arbitrary. Others contended that "arbitrary" meant not only "illegal" but also
"unjust," something done capriciously, in accordance with someone's will or
discretion, in a despotic, imperious, tyrannical, controlling manner. n141 These
provisions were meant to be a safeguard against the injustices that a powerful
state can easily inflict on a helpless individual; they were intended to ensure
that executive officials and police, endowed in all countries with discretionary
power to be exercised in the public interest, did not exercise their power
without due regard for individuals' rights. n142
Less
controversial, perhaps, is the Covenant's requirement that certain governmental
acts, which infringe on an individual's rights, be undertaken only "on such
grounds and in accordance with such procedure as are established by law." This
is, for example, the language applicable in cases of deprivation of liberty.
n143 Limitations on certain rights in the name of national security or public
order must be "provided by law," n144 or "prescribed by law," n145 or "imposed
in conformity with the law." n146
The first problem
arising with respect to those provisions was the meaning of the general term
"law." The European Court of Human Rights, in the famous Sunday Times
Case, n147 interpreted this word broadly, applying it not only to statutory
law but also to unwritten law, the English common law or equivalent customary
law elsewhere. The Court noted, however, that such unwritten law must be
adequately accessible to all citizens, and should be formulated with sufficient
precision, [*30] allowing a person "to foresee to a degree that is
reasonable in the circumstances, the consequences which a given action may
entail." n148 The Court continued: "Those consequences need not be foreseeable
with absolute certainty: experience shows this to be unattainable. Again, whilst
certainty is highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances." n149
The basic reason for the general requirement that certain
procedures -- such as detention procedures -- must follow rules prescribed by
law is to circumscribe arbitrary actions by public officials. There would be no
rule of law if every policeman were entitled to decide at his discretion who
could be arrested, for what reasons, and under what conditions, or, similarly,
if every judge could condemn a prisoner at his discretion and in accordance with
his own idea of what the law should be.
The Permanent
Court of International Justice confronted the problem of unbounded discretion in
the 1935 Danzig Decrees Case. n150 The Court pointed out that a provision
in the Danzig Constitution, similar to that in the Covenant requiring that
restrictions on individual liberties be imposed only by law, was not a mere
formality that could be fulfilled simply by enactment of a law without regard
for its content. On the contrary, according to the Court, the law must define
clearly the circumstances in which a person may be deprived of his liberty. The
Court recognized that the law cannot always regulate every detail; being
composed of a system of general definitions, the law sometimes permits a judge
to exercise discretion not only in the interpretation, but also in the
application of the law. n151 Nevertheless, in some instances, this discretionary
power is so great as to exceed any definition of reasonable limits. Accordingly,
the Court found the law in question to be contrary to the Danzig Constitution
because it allowed a judge to deprive a person of liberty even for an act not
prohibited by law, if the judge considered the act deserving of punishment
"according to the fundamental idea of a penal law and according to sound popular
feeling." n152 The law accorded to judges excessive discretion: a person could
be punished for an act that he could not recognize in advance as punishable.
n153 The Danzig Decrees decision was sound, and it is quite likely that
parallel provisions [*31] in the Covenant and the European
Convention will be interpreted in a similar fashion.
iii. Protections against acts by private citizens
Most articles of the Covenant are concerned with
governmental or official violations of human rights. In some cases, however,
protection might be needed against the acts of private citizens. The Covenant
addresses, for instance, the inherent right to life of every human being, and
requires that this right be protected by law. The exact meaning and extent of
these provisions are uncertain; essentially, two interpretations are possible.
Either the state is a guarantor of human life and should make an effort to
prevent the taking of a life by another individual, a bandit, or a mob; or, the
state is at least obliged to apprehend murderers and punish them adequately in
order to deter future murders, not only by the original murderer but also by
other persons contemplating a murder. When a state has failed to exercise due
diligence to prevent such injury, and local remedies have been exhausted without
adequate redress or justice has been denied, the law of state responsibility for
injuries to aliens has been applied. n154
The issue was
raised when the Covenant was drafted. The majority of the Commission on Human
Rights expressed the view that "States should be called upon to protect human
life against unwarranted actions by public authorities as well as by private
persons." n155 In support of this view is the language of article 2 of the
Covenant, which requires all States Parties to undertake not only to respect,
but also to "ensure" the rights recognized in the Covenant for all individuals
within its territory and subject to its jurisdiction. Although most individual
murders cannot be prevented, a state should take appropriate measures to prevent
injuries to individuals whenever a riot or mob violence threatens. A state might
also violate the Covenant if it fails to prosecute, lightly punishes, or easily
pardons a murderer.
Private activities may also
constitute violations of the Covenant. For example, a violation of article 20 of
the Covenant may occur when private citizens engage in propaganda for war or
advocacy of national, racial, or religious hatred, especially if such activity
incites discrimination, hostility, or violence. n156 Some countries consider
such provisions contrary [*32] to the right of free speech and
freedom of information, and have been reluctant to accept them. The United
Kingdom has made a reservation to the whole of article 20, n157 and five
Scandinavian countries have made a reservation to the provision relating to the
prohibition of war propaganda. n158 The United States announced its intention to
make a reservation to article 20, on the ground that it conflicts with the U.S.
Constitution. n159
3. The first generation of
human rights: conclusions
The Covenant on Civil and
Political Rights is the least novel of human rights instruments. It reflects
human rights values that have been developing in many countries of the world
since the signing of the Magna Carta. Both old and new national constitutions
contain similar principles. In addition, international arbitral tribunals have
applied these principles extensively in cases of international responsibility
for injuries to aliens. The Covenant and the European Convention, as well as the
inter-American and African instruments, thus contain generally accepted
principles that apply not only to the parties to these instruments, but also to
other states. The law of human rights as embodied in the international
instruments is not merely treaty law, but rather has become a part of
international customary law of general application, except in areas in which
important reservations have been made. These documents do not create new rights;
they recognize them. Although the line between codification and development of
international law is a thin one, the consensus on virtually all provisions of
the Covenant on Civil and Political Rights is so widespread that they can be
considered part of the law of mankind, a jus cogens for all. Thus, an
important step has been taken in enlarging the scope of international law and in
providing international protection to many important individual rights.
III. THE SECOND GENERATION OF RIGHTS: ECONOMIC, SOCIAL,
AND CULTURAL RIGHTS
A. Development of the Concept of
Economic, Social, and Cultural Rights
Civil and
political rights are usually traced to the pronouncements of [*33]
the American and French Revolutions; the concept of economic and social rights,
in comparison, is generally assumed to have originated in the Russian Revolution
of 1917. It was as a counterbalance to the Third International that the Paris
Peace Conference established the first international institution for social
justice: the International Labour Organisation (ILO). n160 The ILO proved to be
particularly successful as an international social institution. Over the years
it developed many international labor standards, in the form of conventions and
recommendations, as well as an effective system of supervision through periodic
reports and the investigation of complaints. n161
Nevertheless, it was in response to the Nazi tyranny rather than as a
sequel to the ILO that President Roosevelt conceived the idea of an instrument
dealing with economic and social rights. In his "Four Freedoms" message to the
U.S. Congress in 1941, n162 President Roosevelt mentioned not only freedom of
speech and expression, freedom of religion, and freedom from fear (including
freedom from wars of aggression), but also "freedom from want." The latter
requires "economic understandings which will secure to every nation a healthy
peacetime life for its inhabitants -- everywhere in the world." n163 In his 1944
Message to Congress, n164 President Roosevelt spelled out in more detail the
rights that were embraced in his concept of "freedom from want." He pointed out
that "true individual freedom cannot exist without economic security and
independence"; that "[p]eople who are hungry and out of a job are the stuff of
which dictatorships are made"; and that "[i]n our day these economic truths have
become accepted as self-evident." n165 He knew well that in the United States in
the 1930's it was the New Deal, with its economic, social, and labor reforms,
that prevented economic and social chaos. He felt that, similarly, global chaos
and totalitarianism could be stopped only by drastic economic and social reforms
throughout the world. Although his two messages were directed primarily to a
domestic audience, his words had a worldwide impact, and were not forgotten when
the United Nations began to address human rights issues.
In the Four Freedoms speech, President Roosevelt had emphasized
[*34] "the social and economic problems which are the root cause of
the social revolution which is today a supreme factor in the world." n166 He
noted that there is nothing mysterious about the foundations of a healthy and
strong democracy, and listed expressly "the simple and basic things that must
never be lost sight of in the turmoil and unbelievable complexity of our modern
world." They were:
Equality of opportunity for youth
and for others.
Jobs for those who can work.
Security for those who need it.
The ending of special privilege for the few.
The preservation of civil liberties for all.
The enjoyment of the fruits of scientific progress in a wider and
constantly rising standard of living. n167
To counter
the "new order of tyranny which the dictators seek to create with the crash of a
bomb," Roosevelt proposed a "moral order" based on freedom and "the supremacy of
human rights everywhere." n168 This was the message that sustained the people of
the world in the dark days of the Second World War, when the forces of evil
seemed to be winning both in Europe and in Asia.
In his
1944 message, delivered when the situation looked a little brighter, President
Roosevelt linked the demand for a just and durable system of peace with the need
for "a decent standard of living for all individual men and women and children
in all nations." n169 He emphasized that "[f]reedom from fear is eternally
linked with freedom from want." n170 When he said that a nation, no matter how
high its general standard of living may be, "cannot be content . . . if some
fraction of [its] people -- whether it be one-third or one-fifth or one-tenth --
is ill-fed, ill-clothed, ill-housed and insecure," n171 he had Americans in
mind. Nevertheless, that message was even more valid for other peoples, as was
the rest of his statement in which he emphasized that "true individual freedom
cannot exist without economic security and independence." n172 Although the
United States since its inception had been concerned with certain inalienable
political rights designed to safeguard life and liberty, the time had come, the
President believed, to accept some economic truths as self-evident and,
accordingly, to accept a second Bill of Rights, providing "a new basis of
security and prosperity . . . for all -- regardless [*35] of
station, race, or creed." n173 He then presented a list, much longer than that
in the 1941 message, of the rights to be included in the second Bill of Rights.
They were:
The right to a useful and remunerative job
in the industries, or shops or farms or mines of the Nation;
The right to earn enough to provide adequate food and clothing and
recreation;
The right of every farmer to raise and sell
his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade
in an atmosphere of freedom from unfair competition and domination by monopolies
at home or abroad;
The right of every family to a
decent home;
The right to adequate medical care and the
opportunity to achieve and enjoy good health;
The right
to adequate protection from the economic fears of old age, sickness, accident,
and unemployment;
The right to a good education.
n174 President Roosevelt then challenged the United States to move
forward, after the war was won, toward the implementation of these rights and
toward new goals of human happiness and well-being.
President Roosevelt's idea of freedom from want, announced to the world
in 1941, was reflected in an international bill of rights drafted by the United
States in 1942. The draft included the following provisions:
Article I. -- Governments exist for the benefit of the people
and for the promotion of their common welfare in an interdependent world.
Article II. -- All persons who are willing to work,
as well as all persons who through no fault of their own are unable to work,
have the right to enjoy such minimum standards of economic, social and cultural
well-being as the resources of the country, effectively used, are capable of
sustaining. n175
At the San Francisco Conference from
which the U.N. Charter emerged, the United States, together with the United
Kingdom, the Soviet Union, and China, proposed the insertion into the Charter of
several general references to human rights. U.S. Secretary of State Stettinius
referred to the Four Freedoms speech at that time, explaining that freedom from
want encompassed the right to work, the right to social security, and the right
to opportunity for advancement. n176
[*36]
Australia later took over the fight for an express mention in the Charter of
economic and social rights, proposing that the members of the United Nations
should pledge themselves "to take action both national and international for the
purpose of securing for all peoples, including their own, improved labour
standards, economic advancement, social security and employment for all who seek
it." n177 The final text of the Charter's preamble speaks of the determination
of the peoples of the United Nations "to promote social progress and better
standards of life in larger freedom" and "to employ international machinery for
the promotion of the economic and social advancement of all peoples." n178
Article 55 of the Charter points out that "the creation of conditions of
stability and well-being" is essential for "peaceful and friendly relations
among nations." Accordingly, the United Nations was authorized to promote
"higher standards of living, full employment, and conditions of economic and
social progress and development." n179 Article 55 contains parallel provisions
for promoting both "solutions of international economic, social, health, and
related problems; and international cultural and educational co-operation," and
"universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion." n180
Because of this emphasis in the Charter, and perhaps
because the chairperson of the Drafting Committee was the President's widow,
Eleanor Roosevelt -- whom the President had often called his social conscience
-- the Commission on Human Rights included in the Universal Declaration on Human
Rights a number of provisions on economic, social, and cultural rights. The
section of the Declaration that contains these rights begins with the almost
preambular provision that everyone "is entitled to realization, through national
effort and international cooperation and in accordance with the organization and
resources of each State, of the economic, social, and cultural rights
indispensible for his dignity and the free development of his personality." n181
Other provisions deal with the rights to work and equal pay, to protection
against unemployment, and to "just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity"; the rights to form
and join trade unions; the right to rest and leisure, including holidays with
pay; the right to an adequate standard of living, including food, clothing,
housing, and medical care; the right to social security, [*37]
especially against unemployment, sickness, and old age; the right to education;
the right to participate in the cultural life of the community; the right to
protection of scientific, literary, and artistic production; and the right to a
social and international order in which the rights and freedoms set forth in the
Declaration, including civil and political as well as economic, social, and
cultural rights, could be fully protected. n182
B.
The International Covenant on Economic, Social and Cultural Rights
Although the provisions of the Universal Declaration
relating to economic, social and cultural rights were quite detailed, the Human
Rights Commission prepared an even more comprehensive document -- the
International Covenant on Economic, Social and Cultural Rights. n183 This
Covenant, completed in 1966, came into force in 1976, and is now binding on more
than seventy states. n184 Although all states that have become parties to the
Civil and Political Covenant have also accepted the Covenant on Economic, Social
and Cultural Rights, two additional states, Honduras and the Philippines, have
ratified only the latter. n185 The States Parties to the Covenant on Economic,
Social and Cultural Rights represent all parts of the world; they do not belong
to just one geographical or ideological group. There is France and the United
Kingdom, the Soviet Union and Romania, Costa Rica and Jamaica, India and Sri
Lanka, Kenya and Senegal. Within the past year, five states ratified the
Covenant; n186 at this rate, there are likely to be more than 100 ratifications
by the end of the 1980's, representing two-thirds of the international
community.
[*38] Although the road now
seems relatively smooth, it was not so in the beginning. The Commission on Human
Rights had already made good progress on the Covenant on Civil and Political
Rights when Australia, the Soviet Union, and Yugoslavia proposed that provisions
on economic, social, and cultural rights be included in the Covenant. n187 The
Commission initially was reluctant to address that issue, but the General
Assembly requested that it proceed. n188 When the Commission finally drafted
provisions on the subject, strong opposition surfaced in the Economic and Social
Council. Some states announced that they were unwilling to become parties to a
binding instrument such as the Covenant if they would thereby have to commit
themselves to clauses concerning economic, social, and cultural rights. Their
argument was that such rights can be guaranteed only by a sound national
economy, not by the signing of a document. Other states insisted that because
the United Nations promised in its Charter to promote economic, social, and
cultural rights, the Covenant must include such rights. Some participants
pointed out that there were important differences between the two categories of
rights: civil and political rights could be given prompt legal effect by the
adoption of legislation, but economic, social, and cultural rights could be
treated only as objectives to be achieved progressively, as the necessary
resources became available. The basic civil and political rights were described
by some as traditional, subjective, and negative; the economic, social, and
cultural rights were characterized as new, objective, and positive. Others
considered these latter rights to be indefinite, promotional, and programmatic.
n189
As a compromise, it was suggested that two
covenants rather than one be drafted, so that differences between the two
categories of rights could be taken into account. n190 The General Assembly
reluctantly accepted this idea, but insisted on the need for unity, equal
protection of all the rights, and, accordingly, simultaneous preparation and
approval of the two documents. n191 When the two documents were presented to the
General Assembly in 1954, they were generally considered to represent a broad
compromise between differing political, economic, and cultural opinions.
Although not ideal, the two drafts were regarded as fairly satisfactory. It was
pointed out that effectiveness of the Covenants would [*39] depend
as much on their acceptability as their content. n192 It was thus necessary for
the General Assembly to balance two considerations: on one hand, acceptance of
the lowest possible common denominator would assure rapid ratification, but the
documents would have no real effect; on the other hand, strict adherence to high
ideals might lead states to refuse to ratify the documents, and the instruments
would thus be of little value. n193 The drafters had to locate the narrow line
between these two approaches. The increasing number of ratifications, after
early reluctance, proves that they have attained this goal.
1. Implementation of the Covenant on Economic,
Social and Cultural Rights
i. The progressive
nature of the Covenant's implementation
The
drafters had to solve several other general problems in connection with the
introductory clauses to the Covenant on Economic, Social and Cultural Rights.
n194 It was agreed first that each State Party should undertake "to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures." n195 This was an "umbrella" provision covering all the
rights in the Covenant, replacing an unsuccessful attempt to incorporate
detailed restrictions and exceptions into each article. Traces of the abandoned
approach to exceptions still may be found in some articles of the Covenant,
especially in the fine print of articles 13 and 14, which deal with the right to
education. n196
The main emphasis in the text of
article 2 is on the "progressive" nature of the obligation to achieve economic,
social, and cultural rights. n197 The drafters recognized in particular that
many countries do not yet have the necessary resources, and that time would be
needed to develop them. To speed up this development, the text included a gentle
hint that states endowed with better resources and technological know-how should
help their less fortunate brethren. This should be accomplished
[*40] "through international assistance and co-operation, especially
economic and technical." n198 Although the Covenant allows states some latitude
regarding the "appropriate means" required for the full realization of economic,
social, and cultural rights, the drafters felt that "legislative measures"
should not be neglected, n199 because such measures could help establish the
policies to be pursued and could provide the necessary legal and administrative
framework for the implementation of these policies.
These provisions have been criticized for not going far enough and for
being full of loopholes. Critics pointed out that to undertake "to take steps"
for the realization of rights was not equivalent to guaranteeing these rights;
that a state criticized for doing nothing could always plead lack of resources;
and that to allow states to achieve "progressively" the realization of the
economic, social, and cultural rights would permit indefinite delays. Because
the obligations under the Covenant thus could easily be evaded, the value of the
document was arguably greatly diminished. n200
In
defense of the new text, proponents argued that it would have been futile to
impose obligations that could not be fulfilled; either no state would ratify the
Covenant, or those ratifying it would soon discover that they were unable to
comply and therefore would withdraw from the Covenant. Proponents further
contended that such noncompliance would provide more support for those who claim
that international law is not law because states do not comply with its
rules.
It also was noted that in an interdependent
world a state can never be sure what resources are at its disposal;
international economic conditions and terms of trade change constantly and
rapidly and are not subject to the control of any one state. Furthermore, the
reference to "available resources" and the use of the term "progressively"
apparently distinguished between developed and developing countries, yet at the
same time imposed on all states a general obligation to achieve progressively
higher levels of fulfillment of rights. n201 The phrase "available resources"
contemplates not only the national resources of a country, but also the
resources that it might be able to obtain from other countries or international
institutions. To implement this idea, the Covenant imposes on the Economic and
Social Council the duty to alert those international institutions concerned with
the furnishing of technical assistance to any [*41] matters in the
national reports that could assist such institutions in deciding on
"international measures likely to contribute to the effective progressive
implementation" of the Economic, Social and Cultural Covenant. n202 In addition,
States Parties to the Covenant agreed that "international action for the
achievement of the rights recognized in the . . . Covenant includes . . . the
furnishing of technical assistance." n203 Thus, the Covenant clearly recognizes
a collective obligation to improve economic, social, and cultural standards,
another important step toward an interdependent world community.
ii. Guarantees against discriminatory implementation
A general provision imposes on States Parties the
obligation "to guarantee that the rights enunciated in the . . . Covenant will
be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status." n204 Thus, whatever level a country reaches in
the realization of economic, social, and cultural rights at any given time, the
benefits thereof would have to be accorded equally to all persons. This
antidiscrimination provision was adopted despite some opposition, which was
based to a certain extent on the ground that some countries might be unable to
provide immediately for equality of pay between the sexes. n205 Unlike most of
the other provisions of the Covenant, the antidiscrimination provision is not
"progressive"; it applies as soon as a state ratifies the Covenant. n206
The Covenant includes one exception to the principle of
equality, however, and another exception was accepted although it is not
explicitly mentioned. The Covenant provides expressly that "[d]eveloping
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 . . . Covenant to non-nationals." n207 This provision was adopted by an
almost evenly divided vote (forty-one to thirty-eight, with twelve abstentions);
many delegations considered it contrary to the spirit of universality and
equality underlying the Covenant, and likely to give rise to discrimination
going far beyond the intention of the exception. Defenders of the provision
argued that it was needed both to rectify the inequalities that remained in many
countries from the colonial [*42] era and to remove the strong
influence that former colonial masters retained over the national economy of
those countries. Although not expressly stated, it was generally accepted that
the prohibition of discrimination also should not apply to situations in which a
country needs to adopt special protective measures, called "affirmative action"
in some countries, designed to enable certain socially and educationally
under-privileged groups to achieve equality. Temporary privileges for such
groups constitute badly needed steps toward equality rather than discriminatory
actions. n208
In view of the special position of women
in many societies, it was also thought desirable to add a specific provision
imposing on States Parties the obligation "to ensure the equal right of men and
women to the enjoyment of all economic, social and cultural rights set forth in
the . . . Covenant." n209 It was agreed that women must enjoy the whole range of
economic, social, and cultural rights because such rights are interdependent.
n210 It would be unrealistic, for example, to allow women to hold public office,
if simultaneously they were excluded from schools providing the requisite
training.
In spite of the Covenant's antidiscrimination
theme, one limitation on equality was included: equality is guaranteed only with
respect to the rights set forth in the Covenant. n211 In order to avoid the
perpetuation of some kinds of discrimination, an attempt was made to remove this
restriction, but the prevalent view was that states that were willing to agree
to precise obligations under the Covenant might be reluctant to sign a carte
blanche. Legal systems and traditions of long standing, family customs, and
religious tenets could not be changed overnight. The first step could be taken
immediately; if additional steps became necessary, they could be taken later.
iii. Limitations on the exercise of rights under the
Covenant
The rights in the Covenant on Civil and
Political Rights can be limited [*43] in time of emergency; n212 in
contrast, the Covenant on Economic, Social and Cultural Rights contains no
comparable provision. Furthermore, while the Covenant on Civil and Political
Rights contains several provisions allowing a state to impose restrictions for
the purpose of protecting "national security, public order (ordre
public), public health or morals or the rights and freedoms of others," n213
the Covenant on Economic, Social and Cultural Rights contains only one general
n214 and one specific n215 clause on the subject, both of them more moderate
than those in the other Covenant. The general clause allows only such
limitations on economic, social, and cultural rights as are determined by law
and "only in 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." n216 This restriction on a state's power to impose limitations was a
compromise between those who found no need for such limitations in this Covenant
and those who worried that states might feel free to limit the rights
arbitrarily if there were no expressly stated limitations. The first group
argued that the Covenant merely recognized rather than guaranteed rights; the
rights therein were stated in a broad manner, and states were given wide
latitude in regulating and determining the scope of the rights. The second group
believed that the Covenant established merely the necessary minimum and that
there was no need for limitations to protect morality, public order, or the
rights and freedoms of others. The general clause as adopted does not include
such broad limitations; instead, it allows only such limitations as may be
necessary to promote "the general welfare in a democratic society." n217
The specific clause is closer in its content to the
provisions of the Covenant on Civil and Political Rights, and allows the
imposition of limitations on the right to form and join trade unions, and on the
right of trade unions to function freely, provided that the limitations are
prescribed by law and are "necessary in a democratic society in the interests of
national security or public order or for the protection of the rights and
freedoms of others." n218
References in both provisions
to a "democratic society" are analogous to those in articles 21 and 22 of the
Covenant on Civil and Political [*44] Rights. These articles relate
to the right of peaceful assembly and the freedom of association. n219 When this
phrase was discussed in connection with article 21, some expressed the view that
any limitations must be restricted to those that are compatible with the basic
principles of a democratic society. In response to the objection that the word
"democracy" might be interpreted differently in various countries, it was argued
that a "democratic" society is one that respects the principles of the Charter
of the United Nations, the Universal Declaration of Human Rights, and the
Covenants on human rights. n220 The phrase "democratic society" appears also in
article 29(2) of the Universal Declaration of Human Rights. The drafters
inserted it there on the basis of a similar clause in the statement of essential
human rights, prepared in 1946 by a committee of the American Law Institute n221
and presented to the United Nations by Panama. n222 The limitation was designed
to emphasize the general relativity of rights, and the need to prevent abuse of
the rights, to the detriment of other individuals or of the State itself. Among
the American Law Institute's examples were the following: freedom of religion
does not require condonation of polygamy; freedom of speech does not preclude
adoption of reasonable laws prohibiting libel, slander, or blasphemy; and
freedom of assembly or association does not prevent the prohibition of parties
seeking to establish a dictatorship that would destroy all freedoms. n223
iv. The Covenant's interaction with other international
documents
In considering the substantive articles
of the Covenant on Economic, Social and Cultural Rights, one further element
must be reviewed. It was recognized early on that various agencies of the United
Nations had dealt with most of the issues considered in the Covenant, usually in
considerable detail, in numerous conventions and declarations. In particular,
the drafters of the Covenant were familiar with the ILO's exceptional record in
preparing and implementing international labor standards. Consequently, the
drafters of the Covenant considered it important not to impinge on the work of
the specialized agencies by creating either conflicting provisions or rules that
were too precise. Preference thus was given to short, succinct statements of
general principles. For example, article 7 of the Covenant calls for "just and
favourable [*45] conditions of work," "fair wages," and "reasonable
limitation of working hours." n224 The Covenant also emphasizes the need for
continuous progress. n225 The specialized agencies were expected to take over
from there, elaborating more detailed instruments, overseeing their
implementation, and reporting to the Economic and Social Council "on the
progress made in achieving the observance of the provisions of the . . .
Covenant falling within the scope of their activities." n226 The system has been
working well and the specialized agencies' reports have proven to be crucial in
evaluating progress made under the Covenant in recent years.
2. Substantive provisions of the Covenant on
Economic, Social and Cultural Rights
Among the
rights listed in the Covenant on Economic, Social and Cultural Rights, the right
to work has been considered basic. n227 Effective implementation of this right
would presumably eliminate unemployment, thereby banishing poverty and its
attendant evils. This in turn would create an atmosphere in which other rights,
particularly civil and political rights, could be enjoyed by all. In addition,
useful work would benefit both society, through the production of needed goods
and services, and the individual, through the feeling of satisfaction that
accompanies the use of one's talents and the opportunity to contribute both to
individual well-being and the common good.
The Covenant
specifies that the right to work means primarily that everyone should have an
"opportunity to gain his living by work." n228 The idea that a person has an
obligation to work was clearly rejected; such a duty might have led to forced
labor, reminiscent of the Nazis' and certain countries' abuse of such labor. The
right to work includes the concept of free choice of an occupation; the work
must be one that a person "freely chooses or accepts." n229 The scope of this
choice is not clear; no determination has been made about how long an individual
can refuse offers of employment and still claim the opportunity to work.
The right to work, like other rights under this Covenant,
is subject to progressive realization. The Covenant does, however, list some
specific steps to promote its full realization. These steps include the
establishment [*46] of technical and vocational guidance and
training programs; n230 clearly, only skilled workers would be able to choose
from among jobs that would provide decent wages. The Covenant then lists several
ambitious goals: steps should be taken "to achieve steady economic, social and
cultural development and full and productive employment under conditions
safeguarding fundamental political and economic freedoms to the individual."
n231 The reference to "development" embraces the economic, social, and cultural
development of the individual, as well as the society of which he is a part.
n232 "Full employment" is a goal already specified in the U.N. Charter, n233 and
is important not only domestically but also internationally; low employment
leads to economic instability and international crises. The widespread
unemployment in Germany in the 1930's enabled Hitler to achieve power and to
threaten the destruction of the world and modern civilization. This must be
avoided in the future. Employment should also be "productive," in that it should
contribute to the general welfare of the community. States should avoid "making"
work that is artificial and that has no special value. Finally, states should
not attempt to achieve the goal of full employment through authoritarian means
that would result in abridgment of the individual's freedoms. The society's
various goals must be carefully balanced to ensure that the accomplishment of
one goal does not destroy another.
The Covenant's
provision on social security n234 is the most succinct of all the provisions.
The ILO has adopted a number of instruments on the subject, n235 but, in spite
of its brevity, the Covenant's provision goes beyond those instruments to a
certain extent. It speaks of social security in the broadest terms, to embrace
not only social insurance but also other methods of social and economic
assistance for the benefit of insecure members of the community. It provides
social security to "everyone," not just workers. Attempts to narrow the
application of the principle to workers only were unsuccessful. Similarly
rejected were special financing schemes restricted to contributions by workers,
or by [*47] workers and employers. Instead, each state was allowed
to select any financing method it deemed appropriate. n236
To offer another example of the Covenant's breadth and flexibility, the
Covenant recognizes the right to education and carefully sets out obligations
relating to different stages of education: primary, secondary, higher, and
fundamental. n237 To avoid rigidity, the Covenant does not define these
categories of education, thus allowing States Parties flexibility in
implementing the provisions. It provides expressly for prompt implementation of
"the principle of compulsory [primary] education free of charge for all," and
for progressive achievement of free education at higher levels. n238
The novel idea of providing international protection and
supervision to economic, social, and cultural rights has disturbed scholars more
often than statesmen. Almost half of the world's states have accepted the
Covenant, and many of them have by now submitted reports for international
scrutiny to a specially appointed working group of the Economic and Social
Council. n239 Most countries have accepted these steps, which seemed
revolutionary in the immediate postwar period, as routine; some states that are
not even parties to the Covenant have been submitting parallel reports under
other instruments, especially the Universal Declaration of Human Rights, n240
and the various systems of implementation established by the several specialized
agencies of the United Nations. n241 Thirteen European states have also accepted
parallel obligations under the European Social Charter, approved in Turin in
[*48] 1961. n242 Another silent revolution has thus succeeded.
IV. THE THIRD GENERATION OF RIGHTS: COLLECTIVE RIGHTS
One of the main characteristics of humanity is that human
beings are social creatures. Consequently, most individuals belong to various
units, groups, and communities; they are simultaneously members of such units as
a family, religious community, social club, trade union, professional
association, racial group, people, nation, and state. It is not surprising,
therefore, that international law not only recognizes inalienable rights of
individuals, but also recognizes certain collective rights that are exercised
jointly by individuals grouped into larger communities, including peoples and
nations. These rights are still human rights; the effective exercise of
collective rights is a precondition to the exercise of other rights, political
or economic or both. If a community is not free, most of its members are also
deprived of many important rights.
A. Recognized
Third-Generation Rights
1. The right of
self-determination
International law has long been
concerned with one of the most basic of collective rights: the right of
self-determination. Many wars were fought in the name of the principle of
self-determination, and the international community has often come to the
assistance of those who have invoked that principle. The Concert of Europe came
to the assistance of Belgium and Greece in the second quarter of the nineteenth
century and, in the last quarter of that century, helped various Balkan
countries gain independence. n243 At the end of the First World War, President
Wilson applied the principle of self-determination to the countries of Eastern
Europe. During the Second World War, the Atlantic Charter, which was endorsed by
the United Nations in its 1942 Declaration, promised to "respect the right of
all peoples to choose the form of government under which they will live," and to
have "sovereign rights and self-government restored to those who have been
forcibly deprived of them." n244 Two parts of the concept of self-determination
have thus surfaced: internal self-determination, or the right of individuals to
select their own government, and external self-determination, or the right to be
free from foreign domination. The Charter of the United Nations
[*49] emphasizes that "friendly relations among nations [shall be]
based on respect for the principle of equal rights and self-determination of
peoples." n245 The General Assembly itself decided that both Covenants should
contain an article on self-determination. The final version of article 1(1) of
both Covenants begins with this phrase: "All peoples have the right to
self-determination," and concludes with this sentence: "By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development." n246
In contrast to
the Charter, which speaks of the "principle" of self-determination, the Covenant
speaks of a "right," thus leading to a controversy about whether
self-determination is a political principle or a legal right. The partisans of
the political principle view construe self-determination as a nebulous term,
arguing that more precise definition would be required in order to transform it
into a right. According to this view, the principle of self-determination would
also have to be reconciled with other political principles in the Charter,
especially those relating to the maintenance of international peace and
security. In particular, does self-determination mean "local autonomy,"
"self-government," "right to secession," or "right to independence"? The word
"people" also raises questions. Is it different from "nation"? Is a "minority" a
people? Those who consider self-determination to be a collective right assert
that, without the right, neither a people nor the individual members thereof can
be considered free. In the eyes of these proponents, the denial of
self-determination as a right is more likely to endanger international peace
than its recognition as a right.
An initial attempt was
made to confine the right of self-determination to the peoples of the
non-self-governing territories, which belong to colonial empires that are the
objects of specific obligations under article 1(3) of both Covenants n247 as
well as under articles 73 and 76 of the U.N. Charter. n248 Nevertheless, the
final text of the Covenant applies to all peoples, whether they live in
independent States or in non-self-governing [*50] or trust
territories. n249 The principle has also been claimed to apply to countries
that, although historically independent, recently have been deprived of their
independence and have been incorporated into another state. Estonia, Latvia, and
Lithuania frequently have been mentioned in this regard. Others have claimed
that the Ukrainians, members of the largest not yet independent nation, should
be entitled to self-determination, as should the rapidly growing Moslem
republics of Soviet Central Asia. At the same time, there is great reluctance to
extend this principle to minorities. Application of the principle of
self-determination to minorities would raise a more complex problem, because it
would represent a threat to the unity of nations. The problem is one which the
Covenant on Civil and Political Rights solved by granting special rights to
members of minorities rather than to the groups as a whole. n250
The Covenants clearly endorse not only the right of external
self-determination, but also the right of internal self-determination: the right
of a people to establish its own political institutions, to develop its own
economic resources, and to direct its own social and cultural evolution. A
people that cannot freely determine its political status can hardly determine
its economic, social, and cultural status. A people should be free both from
interference by other peoples or states and from deprivation of its right to
self-determination by a tyrant or dictator. The right of self-determination
could be construed to assure the right to exercise freely all other rights,
particularly the Covenants' political and economic rights. Every state has a
concomitant obligation to respect every other state's right of
self-determination and to refrain from interference in the internal affairs of a
state in any way that might impede the right of a people to control its own
destiny.
Article 1(2) of the two Covenants contains a
provision that several Western States strongly opposed. The article provides
that all peoples may "freely dispose of their natural wealth and resources."
n251 Although this was to be accomplished "without prejudice to any obligations
arising out of international economic co-operation, based upon the principle
[*51] of mutual benefit, and international law," n252 some countries
viewed this provision as directed against foreign investments in the mining of
natural resources, possibly allowing expropriation without compensation and
interfering with important contractual obligations. In reply, the provision's
proponents identified as elementary the principle that a people should be the
master of its own natural wealth. The main purpose of the provision was to
ensure, in the words of the Covenants, that "[i]n no case may a people be
deprived of its own means of subsistence." n253 Regardless of the merits of
these contentions, it suffices to note here that the inclusion of article 1(2)
of the Covenants was the outcome of merely one skirmish in the continuing battle
for change in the international economic order. The relation of article 1(2) to
human rights, although important, is incidental.
This
special problem aside, the principle or right of self-determination clearly has
been one of the most influential legal and political doctrines of this century
and had led to a revolutionary transformation of political relationships
throughout the world, including the emergence of more than a hundred new states.
This transformation has changed completely the balance of power in the
international community, because many international institutions function on a
one-state, one-vote basis. One of the first consequences was the establishment,
during the first U.N. Conference on Trade and Development, of the so-called
Group of 77, a joining of forces by the new states and a group of Latin American
countries. n254 By 1980 this group included 118 states. n255 It has more than a
two-thirds majority in most international institutions and has used this
influence on many issues, including human rights questions of special concern to
the group. n256 Following a period of rebellion against the existing system of
international law, reminiscent of the Soviet Union's attitude in the early days
of its existence, the new states have reconsidered their initial position; they
have shown a willingness to accept most rules of the old and new international
law. In some areas of international economic law, however, the new states cling
to the more than one-hundred-year-old opposition of the Latin American states to
rules originally imposed on them by the major powers. This negative attitude
does not extend to human rights. It is especially gratifying to
[*52] note that among the parties to the two Covenants, more than
fifty are members of the Group of 77. These states have become equal partners in
one of the greatest adventures of the human spirit, the promotion of universal
acceptance of the basic principles of human rights.
The
self-determination revolution was one of the first results of the human rights
revolution. Now, the beneficiaries of the former are supporting the broader
human rights revolution. Although noisy disturbances may have been occurring in
other areas, the last General Assembly found time to add a new and important
instrument to the common treasury of human rights: the Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief. n257 Pressure from the new countries forced some states to abandon
their long-drawn opposition to that instrument; because of the insistence Group
of 77 on the need for consensus the declaration was finally adopted without a
vote. n258 This demonstrates that revolutions need not be destructive. On the
contrary, revolutions in the human rights field have proven in practice to be
constructive and forward looking.
2. The right
to development
One facet of the right of
self-determination is the right of a people to "freely pursue their economic,
social and cultural development." n259 The most recent regional human rights
instrument, the African Charter on Human and Peoples' Rights, n260 rephrases
this right slightly to read: "All peoples shall have the right to their
economic, social and cultural development with due regard to their freedom and
identity and in the equal enjoyment of the common heritage of mankind." n261 In
addition, the African Charter proclaims that states have the duty to ensure,
individually or collectively, the exercise of the right to development. n262
The right to development can be traced to the 1944
Declaration of Philadelphia, which was incorporated into the ILO Constitution of
1946. n263 That Declaration affirmed the following principle: "[All] human
beings, irrespective of race, creed or sex, have the right to pursue both their
material well-being and their spiritual development in conditions of freedom and
dignity, of economic security and equal opportunity." n264 [*53] The
U.N. Charter requires members of the United Nations to promote, as an ensemble,
"higher standards of living, full employment, and conditions of economic and
social progress and development." n265 The Universal Declaration gives this idea
another twist by providing that everyone "is entitled to realization, through
national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his
personality." n266 The Universal Declaration adds: "Everyone is entitled to a
social and international order in which the rights and freedoms set forth in
[the] Declaration can be fully realized." n267 The right to development also has
been connected with the right to life; the argument is that because everyone is
entitled to a "decent life" and not merely to the right to exist, the
realization of economic, social, and cultural rights must be essential to an
individual's physical and intellectual well-being. n268 As early as 1968, the
International Conference on Human Rights pointed out in the Teheran Declaration
that "[t]he achievement of lasting progress in the achievement of human rights
is dependent upon sound and effective national and international policies of
social and economic development." n269
The special
importance of the right to development was first brought to the consciousness of
governments and scholars by Judge Keba M'Baye, Chief Justice of the Supreme
Court of Senegal, an active member of the U.N. Commission on Human Rights and a
recently elected member of the International Court of Justice. In his many
writings and speeches since 1972, Judge M'Baye has strongly advocated the
recognition of the right to development as a human right. The right to
development must be a human right, he has argued, because it is essential to the
exercise of other human rights. n270 Due to his influence, UNESCO's 1978
Declaration on Race and Racial Prejudice n271 included the following broad
definition of the right to development: "the right of every human being and
group to full development . . . implies equal access to the means of personal
and collective advancement and fulfilment in a climate [*54] of
respect for the values of civilizations and cultures, both national and
world-wide." n272
A U.N. working group of governmental
experts, after studying the various documents on the subject, came to the
conclusion that the right to development has both a collective and an individual
dimension. n273 The holders of the collective right to development are peoples
and states. Each group of states, especially the developed states, should act to
make possible the enjoyment of the right by all states. n274 The basic purpose
of the development right in its individual dimension is "integral development,"
that is, satisfaction of a number of "basic or fundamental needs" of the
individual. n275 According to another view, the right to development involves
far more than the mere satisfaction of basic needs; n276 its objective is to
establish conditions of equality of opportunity among all peoples, with a view
to the fulfillment of the human person. n277 Consistent with that opinion, the
individual right to development may be considered a multidimensional, composite
right, covering all civil, political, economic, social, and cultural rights
necessary for the "full development of the individual and the protection of his
dignity." n278
In any case, the two dimensions of the
right to development are deemed to be interdependent, and can benefit from
contemporaneous realization. n279 This can be achieved if both national and
international means can be used. n280 Eleanor Roosevelt, chairperson of the
Drafting Committee for the Universal Declaration, noted a special need for
active assistance on a global scale. She pointed out, in particular, that one of
the crucial phrases in article 22 of the Declaration was that human rights could
be realized only jointly, "through national effort and international
co-operation." n281 With international assistance, each country may progress
more rapidly than it would otherwise.
There are,
however, some additional domestic obstacles to development. According to the
group of experts, these obstacles are the failure to involve all segments of the
population in the development process, unequal distribution of the fruits of
development, absence of political [*55] democracy, and an
inefficient economic system. n282 In spite of these obstacles, the experts
agreed that the demands of development do not justify derogation from
fundamental human rights:
[T]here can be no development
without respect for the fundamental rights of the individual[;] a national
development strategy that rejects civil, political, economic, social and
cultural rights would be the very negation of development . . . . [T]he
promotion of economic, social and cultural rights can in no case justify
violations of civil and political rights or any delay in their exercise. n283
What is interesting about the group's discussion is the
shift from consideration of the right to development as primarily an interstate
concept, designed principally to justify demands for economic and technical
assistance, to a conceptualization of development as a right in which the
individual can also share. As the General Assembly pointed out in 1979, "the
right to development is a human right and . . . equality of opportunity for
development is as much a prerogative of nations as of individuals within
nations." n284 A distinction may be made between the "right to development" and
the "right to live in a developing society." n285 The first is usually a right
of peoples, whereas the second is more clearly a right of individuals. From an
individual's point of view, every society is or should be constantly developing
rather than stagnating or retrogressing. If development is curtailed, the rights
of individuals are also likely to be curtailed.
Development should not be considered in purely economic terms. n286 In
recent years there has been an appropriately increased emphasis on social
factors. In his study of the subject in 1979, n287 the Secretary General of the
United Nations concluded that the following human rights elements are a part of
the concept of development:
(i) The realization of the
potentialities of the human person in harmony with the community should be seen
as the central purpose of development; [*56]
(ii) The human person should be regarded as the subject and not the
object of the development process;
(iii) Development
requires the satisfaction of both material and non-material basic needs;
(iv) Respect for human rights is fundamental to the
development process;
(v) The human person must be able
to participate fully in shaping his own reality;
(vi)
Respect for the principles of equality and non-discrimination is essential;
and
(vii) The achievement of a degree of individual and
collective self-reliance must be an integral part of the process. n288
The right to development thus requires careful balancing
of the interests of the community and of individuals. A healthy regard for the
rights of the individual is indispensable for a state's success in pursuing its
right to development. At the same time it has been said that the "right to
development is for a people what human rights are for an individual. It
represents the transposition of human rights to the level of the international
community." n289 In concluding this section, a quotation from President Julius
Nyerere of Tanzania is appropriate: "Freedom and development are as completely
linked together as are chickens and eggs. Without chickens you get no eggs; and
without eggs you soon have no chickens. Similarly, without freedom you get no
development, and without development you very soon lose your freedom." n290
3. The right to peace
Analogously, one can say that without peace there can be no human
rights. Wars not only result in great loss of human life; they are also inimical
to human rights. Even preparation for war often results in the curtailment of
human rights. The converse is also true: a country that grossly violates human
rights is more likely to start a war than a country in which freedom flourishes.
n291 Alternately, gross violations of human [*57] rights in a
country can lead to military intervention by another country; such intervention
can easily escalate into a larger war.
It is not
surprising, therefore, that the right to peace is another of the
third-generation collective rights. n292 In 1976, the U.N. Commission on Human
Rights pointed out that "everyone has the right to live in conditions of
international peace and security and fully to enjoy economic, social and
cultural rights and civil and political rights." n293 The Commission added that
"unqualified respect for and the promotion of human rights and fundamental
freedoms require the existence of international peace and security." n294 It
also noted that "flagrant and massive violations of human rights, including
economic, social and cultural rights, may lead the world into armed conflicts."
n295 According to its recommendation, all states should make an effort to create
the most favorable conditions for the maintenance of international peace and
security "through respect for and the promotion of human rights and fundamental
freedoms, including the right to life, liberty and security of person." n296
The Commission's resolution encountered strong opposition
from several Western powers, including France, the United Kingdom, and the
United States. The opposition relied on several grounds for its objection.
First, the Commission was unjustified in raising the right to life to a position
of paramount importance, over and above all other human rights. Moreover,
although international peace and security were important for the promotion of
human rights, the Commission should have stressed, conversely, that violations
of human rights, including widespread torture and oppression of individual
liberties, were among the major causes of tension, violence, and wars.
Furthermore, the dissenters argued, many heroic people have sacrificed their
lives in the defense of human freedoms. Finally, the Commission should be
concerned with human rights rather than peace, and should leave the latter issue
to the Security Council and the General Assembly. n297 Others characterized wars
of aggression as the "worst kind of violation of all fundamental rights and
freedoms, and above all of the right to life itself"; in order to protect human
rights, the Commission should emphasize measures that would promote
international peace and security. n298 The appropriateness [*58] of
the reference in the resolution's preamble to the Helsinki Final Act n299
stirred additional controversy. n300 The resolution was adopted by a divided
vote, twenty-two to seven, with one abstention. n301 This was not an auspicious
beginning for an important new principle.
At the next
session of the Commission, the debate continued in connection with a proposal
relating to the right to development. n302 Several speakers considered the right
to development to be closely linked with the right to peace, and called for the
two rights to be studied jointly. n303 They pointed out that disarmament "should
be promoted and detente should be maintained and increased so that the vast
resources now being used in the arms race might be diverted towards economic and
social progress." n304 Others, agreeing in principle, nevertheless questioned
the existence of an individual right to peace as an established principle of
international law. n305 The resolution, mentioning the right to peace as an
object for a study, n306 was adopted without a vote, although one delegation
reserved its position on the relevant paragraph of the resolution. n307 When the
Secretary General presented his study to the Commission on Human Rights in 1979,
n308 the pendulum shifted further in the direction of acceptance of the right to
peace; a number of speakers agreed that "the right to peace is fundamental to
the full enjoyment of all human rights." n309 The Commission, without a vote,
adopted a resolution stating generally that "exercise of the right to
development implies a reign of peace and the establishment of an international
economic order based on respect for human rights." n310
The right to peace has been primarily discussed as an individual right,
but there is general agreement that any such right necessarily has both
individual and collective aspects; as in the case of the right to development,
these aspects reinforce one another and are not mutually exclusive. n311 The
General Assembly confirmed this relationship by [*59] reaffirming,
in the Declaration on the Preparation of Societies for Life in Peace, n312 "the
right of individuals, States and all mankind to life in peace" n313 and by
asking states to observe the principle that
Every
nation and every human being, regardless of race, conscience, language or sex
has the inherent right to life in peace. Respect for that right, as well as for
the other human rights, is in the common interest of all mankind and an
indispensable condition of advancement of all nations, large and small, in all
fields. n314 This resolution was adopted by 138 votes, with only
Israel and the United States abstaining, due primarily to concern that the
Declaration's prohibition of propaganda for wars of aggression implied a threat
to the freedom of speech. n315
The African Charter on
Human Rights and Peoples' Rights, n316 in contrast, mentions the right to peace
only as a right of the peoples. n317 It does, however, add another dimension to
that right, namely the right to national -- that is, domestic -- peace. The
African Charter provides that all "peoples shall have the right to national and
international peace and security." n318 Whatever the formulation, the main
beneficiaries of the observance of the right to peace would be individuals
living in the countries that accept and abide by the right.
Undoubtedly, if mankind wants to promote human rights and social and
economic progress, it must secure peace on earth. Recognition of a right to
peace -- or, preferably, a right to live in peace, both individual and
collective -- is a step in the right direction.
4. Other third-generation rights
The
African Charter proclaims: "All peoples shall have the right to a general
satisfactory environment favourable to their development." n319 Similarly, a
UNESCO colloquium on new human rights, held in Mexico City in 1980, discussed
"the right to a healthy and ecologically balanced [*60]
environment." n320 This idea may be traced to the following basic principle of
the 1972 Stockholm Declaration on the Human Environment: n321 "Man has the
fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being, and he
bears a solemn responsibility to protect and improve the environment for present
and future generations . . . ." n322 This principle can be traced to an even
more explicit proposal by the United States: "Every human being has a right to a
healthful and safe environment, including air, water and earth, and to food and
other material necessities, all of which should be sufficiently free from
contamination and other elements which detract from the health or well-being of
man." n323
One may also note that the Universal
Declaration of Human Rights, in a similar spirit, but without express mention of
the environment, proclaimed that everyone "has the right to a standard of living
adequate for the health and well-being of himself and of his family, including
food, clothing [and] housing." n324 There is a similar provision in the Covenant
on Economic, Social and Cultural Rights. n325
Other
third-generation rights have been identified. One recent writer has mentioned
the right to food; the right to benefit from or share in the common heritage of
mankind; the right to communicate, that is, to have access to international
means of communication, to participate in their operation, and to ensure two-way
flow of information; the right to humanitarian assistance; the right to the
satisfaction of basic needs; and the right to disarmament. n326 Some of these
rights are perhaps only a variation of other such rights as the right to an
adequate standard of living, to freedom of information, or to peace; others
present intriguing new problems. Several of them, initially considered to be
peoples' rights, are now generally recognized as having a crucial individual
dimension. Jorge Castaneda, the Secretary of State for External Affairs of
Mexico, recently stated that "the phenomena and processes with which we are
concerned can only be approached in a perspective that has man [*61]
himself as its focal point." n327
B. Issues Raised
by the Recognition of Collective Rights
Taken
together, the third generation of human rights raises difficult issues. In the
1950's, the concept of and need for economic, social, and cultural rights were
heatedly debated; today, the opponents of the new rights contend in a similar
manner that the third-generation rights are not really legal rights but are
either political or social principles, or, at best, "moral" rights, without any
legal force. Proponents contend that the new rights have already become a part
of customary international law or of the law of the United Nations, because they
state obligations that can easily be derived from the Charter, the Universal
Declaration, or the Covenants. By making individuals as well as peoples the
subjects of these new rights, international law reaches a new dimension,
allowing entities other than states to claim rights in the international
arena.
The new group of human rights has been given a
variety of names: the third generation of human rights; rights of solidarity;
collective rights, or rights of every human being and of all human beings taken
collectively; synthetic rights; consolidated rights; communal rights; rights of
the peoples, or populist or popular rights; joint rights of individuals and
other groups, or rights exercised by individuals separately and jointly; and new
rights or new dimensions of existing rights. n328 Without delving into
semantics, it is obvious that each phrase has, or could have, different
connotations and consequences. For example, the author of the phrase "third
generation of human rights," Karel Vasak of UNESCO, views these rights as
"infus[ing] the human dimension into areas where it has all too often been
missing having been left to the State or States." n329 Such rights can be
realized only "through the concerted efforts of all the actors on the social
scene: the individual, the State, public and private bodies, and the
international community." n330 Vasak also has pointed out that the first two
generations of human rights were designed to achieve the first two of the three
guiding principles of the French Revolution -- liberte and egalite
-- while the third generation is predicated on brotherhood -- fraternite.
According to Vasak, the new rights, even more than the rights belonging to the
first two categories, are based on the sense of solidarity, without which the
chief concerns of the world community, such as peace, development and
environment, [*62] cannot be realized. n331
The very terminology used, especially the word "generation," has
created some problems. To many persons, the word connotes a succeeding
generation replacing an older one, rather than generations existing convivially
together. Some of the hostility to the economic, social, and cultural rights can
be traced to insistence by several proponents that these new rights should have
precedence over the old ones, that they were more important than the old rights
they supposedly replaced, and that the old rights would have to wait in line
until the basic needs represented by the new rights had been satisfied properly.
Much time passed before the two categories -- civil and political rights on the
one hand, and economic, social, and cultural rights on the other hand -- were
considered to be interdependent and complementary: achievement of the rights in
either category can be accomplished only with the help of the rights in the
other category, and, similarly, failure in one area is likely to bring
deterioration in the other. The same problem arises now regarding the third
category of rights. Proponents claim that if the new rights are not soon
achieved, our planet will become uninhabitable; there will be no human rights or
even human beings about which to worry. n332 Opponents argue that humanity has
survived for many centuries without the new rights, that these rights are not
likely to be implemented in any reasonable way in the foreseeable future, and
that these new rights merely cause confusion because they are vague and
exaggerated in scope.
It has also been said that claims
for new rights distort the meaning of human rights "by pretending that all
objects of human desire are 'rights' which can be had, if not for the asking
then at least for the demanding," especially if one talks of such "rights" as
rights "to a happy childhood, to self-fulfillment, to development." n333
Finally, some dissenters argue that as long as the law of human rights is in
turmoil, states cannot be expected to agree on implementation measures and,
furthermore, that those states that want to avoid the strengthening of
implementation measures might be inclined, as a diversion to press for drastic
changes in and additions to the law.
CONCLUSION
Whatever the merits of the contentions of those who
disparage the new rights, two points must be made; one relates to the
interdependence [*63] of all human rights, the other concerns the
present importance of these rights. With respect to the first point, it must be
noted that various international institutions have specially emphasized the
interdependence, complementarity, and indivisibility of human rights. n334 By
1968, the Teheran International Conference on Human Rights had already stated in
its Declaration that
[s]ince human rights and
fundamental freedoms are indivisible, the full realization of civil and
political rights without the enjoyment of economic, social and cultural rights,
is impossible. The achievement of lasting progress in the implementation of
human rights is dependent on sound and effective national and international
policies of economic development. n335 In a similar spirit the
crucial 1977 General Assembly Resolution 32/130 n336 on alternative approaches
to the improvement of United Nations effectiveness in promoting human rights
noted, inter alia:
(a) All human rights and fundamental
freedoms are indivisible and interdependent; equal attention and urgent
consideration should be given to the implementation, promotion and protection of
both civil and political, and economic, social and cultural rights;
(d) Consequently, human rights questions should be
examined globally, taking into account both the overall context of the various
societies in which they present themselves, as well as the need for the
promotion of the full dignity of the human person and the development and
well-being of the society . . . . n337
It should not
surprise anyone if the truth about the current relevance of the new human rights
were somewhere between the two extreme views. Like the economic, social, and
cultural rights, the new rights, even if not immediately attainable, establish
new goals that can be achieved progressively, by one laborious step after
another. They are vast and overwhelming, but so are our problems. The damage to
humanity that might be inflicted by a nuclear war or an environmental
catastrophe is almost beyond comprehension; we need to grasp any tool that is
available to stem an engulfing tide that is of horrifying proportions. Perhaps
these new concepts can be the equivalent of the Dutch boy's finger that at the
last minute plugged the hole in the dike. We are in a desperate situation; we
need to be brave. As Virgil said, "audentes [*64] fortuna
juvat": fortune helps the daring. In the field of human rights we have had
two successful revolutions; we should have the courage to begin a third.
FOOTNOTES:
n1
Concerning private reprisals, see Clark, The English Practice with Regard to
Reprisals by Private Persons, 27 AM. J. INT'L L. 694 (1933). See also
E. COLBERT, RETALIATION IN INTERNATIONAL LAW 9-50 (1948); A. HINDMARSH, FORCE IN
PEACE 43-56 (1933).
n2 See R. DARESTE, NOUVELLES
ETUDES D'HISTOIRE DU DROIT 40-47 (1902).
n3 L. SOHN
& T. BUERGENTHAL, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 32 (1973). The
treaty between Benevent and Naples provided that an aggrieved Benevent citizen
must twice demand, and be refused, just relief before Neapolitans could be
subjected to reprisals. Even then, reprisals were limited to goods found within
Benevent territory, unless insufficient goods could be found to secure justice.
Similar provisions can be found in the treaty of 880 between Charles III and
Venice and in the treaty of 888 between Berengarius I and Venice. Id.
n4 Id. at 39-40. The dispute concerned Venezuela's
expulsion of two groups of Boston merchants who were gathering guano on the
island and Venezuela's subsequent claim of ownership to the island. Prior to the
merchants' arrival, the islands had been uninhabited, physically unclaimed by
any nation, and thought to be valueless. See 8 TREATIES AND OTHER
INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 144-48 (H. Miller ed. 1948).
In the convention for settlement of the Aves Islands claims, signed at Valencia
on January 14, 1859, Venezuela agreed to pay $ 130,000 in compensation for
losses and damages sustained by the merchants. Id. at 137-39. See
17 DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES, INTER-AMERICAN AFFAIRS,
1831-1860, at 487-521 (W. Manning ed. 1939) (collection of U.S. diplomatic
correspondence regarding complaint and settlement thereof).
n5 See R. PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW 37-41
(3d ed. 1885); J. RIDLEY, LORD PALMERSTON 370-88 (1970).
n6 See Venezuelan Preferential Claims Case (Ger., Gr. Brit.,
Italy v. Venez.), Hague Ct. Rep. (Scott) 55 (Perm. Ct. Arb. 1904) (court held
that blockading powers had preference over other creditor-powers in claims
against Venezuela). One commentator noted, however, that "it is difficult to
sustain a decision which recognizes that by the exercise of force one may gain a
legitimate advantage over those who resort . . . to peace." J. RALSTON,
INTERNATIONAL ARBITRATION FROM ATHENS TO LOCARNO 268 (1929).
The Venezuelan Preferential Case merely determined that the
"blockading" powers would be given preference over other creditor-nations.
Determinations of the validity and amount of the claims by all 10 nations
involved were made by commissions established by a series of protocols into
which Venezuela and each of the creditor-nations had entered. See id. §
176, at 221-24 (brief discussion of events leading to protocols and subsequent
arbitration); A. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS, 1794-1970, at
261-71 (1972) (contains information regarding individual protocols). For
statements of the United States' viewpoint and policy, see THE VENEZUELAN
ARBITRATION BEFORE THE HAGUE TRIBUNAL 1903, at 11-143, 423-55, 931-37, 111-77
(G.P.O. 1905) (compilation of documents from proceedings of the Hague Tribunal
under May 7, 1903 protocols between, inter alia, the United States and
Venezuela).
n7 Mavrommatis Palestine Concessions
(Greece v. Gr. Brit.), 1924 P.C.I.J., ser. A, No. 2, at 12 (Judgment of Aug.
30).
n8 Id.
n9
Interhandel (Switz. v. U.S.), 1959 I.C.J. 6, 27 (Preliminary Objections Judgment
of Mar. 21) (because of Swiss company's failure to exhaust U.S. judicial
remedies, court dismissed claim brought by Swiss government on behalf of
company).
n10 See L. GILES, THE BOOK OF MENCIUS
35 (1942); D. LAU, MENCIUS 69 (1970).
n11 E. VATTEL,
THE LAW OF NATIONS bk. II, § 56, at 62 (London 1758), reprinted in 3 THE
CLASSICS OF INTERNATIONAL LAW 134 (J. Scott ed. 1916).
n12 A. TIBAWI, A MODERN HISTORY OF SYRIA 121-33 (1969). See also
L. SOHN & T. BUERGENTHAL, supra note 3, at 159; see generally
id. at 143-78 (collection of correspondence concerning the massacres and
subsequent intervention).
n13 Id. at 178-79.
n14 See W. HALL, A TREATISE ON INTERNATIONAL LAW
302-09 (4th ed. 1895); E. STOWELL, INTERVENTION IN INTERNATIONAL LAW 53-62
(1921).
n15 Letter from Georges Clemenceau to Ignace
Paderewski (June 24, 1919) (letter accompanying the draft of the Treaty between
the Allied and Associated Powers and Poland Concerning Protection of
Minoritics), reprinted in L. SOHN & T. BUERGENTHAL, supra note
3, at 214.
n16 Cf. L. SOHN & T. BUERGENTHAL,
supra note 3, at 218-19 (according to a report presented to the Council
of the League, minorities treaties were not meant to set out universal
governmental obligations regarding general principles of religious toleration or
general principles for the government of alien people, but rather to deal with
local problems in certain specified districts of Europe); 1 M. TARDU, HUMAN
RIGHTS: THE INTERNATIONAL PETITION SYSTEM 14 (1979) (under League of Nations
Mandate, well-being and development of native populations of former German and
Ottoman dependent territories were considered sacred trusts and placed under
control of Allied powers); E. VIERDAG, THE CONCEPT OF DISCRIMINATION IN
INTERNATIONAL LAW 141 (1973) (Allied and Associated Powers' recognition of a
number of territories as independent states was subject to territories'
acceptance of obligations for minorities within their jurisdiction). See
generally J. STONE, INTERNATIONAL GUARANTEES OF MINORITY RIGHTS (1932)
(authoritative explanation of form and substance of League of Nations minority
protection system).
Nazi Germany took advantage of the
minority protection system by inciting German-speaking minorities in other
nations. See, e.g., M. TARDU, supra, at 44; Humphrey, The
United Nations SubCommission on the Prevention of Discrimination and the
Protection of Minorities, 62 AM. J. INT'L L. 869, 870 (1968). The German
atrocities influenced the formation of a new system for the protection of human
rights. See A. RUSSO, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 32 (1971)
(nations stunned by the atrocities committed by totalitarian nations realized
that protection of individual freedoms could no longer be left to sole
discretion of states).
n17 See Legal Validity of
the Undertakings Concerning Minorities, 6 U.N. ESCOR at 1, 36, 38, 70, 71, U.N.
Doc. E/CN.4/367 (1950), cited in L. SOHN & T. BUERGENTHAL,
supra note 3, at 303-04 (study concluded that League of Nations' system
of minority protections should be considered to have expired, and most national
obligations thereunder to have terminated). See also 1 M. TARDU,
supra note 16, at 31 (minorities' treaties regarded as obsolete and
therefore not renewed).
n18 The contemporary trend is
to encourage the assimilation of minorities and to concentrate on prevention of
discrimination. Humphrey, supra note 16, at 870. Support for this form of
protection was well expressed by representatives from a number of nations in
1960, when the U.N. General Assembly's Special Political Committee debated a
complaint that Austria had filed against Italy in protest of the latter's
treatment of a German-speaking population in the Province of Bolzano. The
delegates of several nations opposed suggestions that a minority protection
system similar to that employed under the League of Nations be established.
See M. MOSKOWITZ, THE POLITICS AND DYNAMICS OF HUMAN RIGHTS 163-65 (1968)
(collection of excerpts from representatives' speeches). See generally E.
VIERDAG, supra note 16, at 148-61 (discussing protection of minorities
under the United Nations); M. MOSKOWITZ, supra, at 155-73 (rationales for
U.N.'s nondiscrimination approach); I. CLAUDE, NATIONAL MINORITIES: AN
INTERNATIONAL PROBLEM 203-13 (1955) (choice between bilateral agreements or
internationalization).
n19 U.N. CHARTER art. 2, para. 7
states:
Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require the Member to
submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter
VII.
n20 See Ermacora, Human Rights and
Domestic Jurisdiction, 124 RECUEIL DES COURS 375, 436 (1968) (principles of
nonintervention not applicable in cases of gross or consistent patterns of
violations because such violations are not essentially within the domestic
jurisdiction of states); Fonteyne, The Customary International Law Doctrine
of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4
CAL. W. INT'L L.J. 203, 240 (1974) (U.N. General Assembly has interpreted
article 2(7) of the Charter as allowing intervention in the internal affairs of
a state in cases of flagrant violations of human rights or the provisions of the
Charter); cf. McDougal & Reisman, Rhodesia and the United Nations:
The Lawfulness of International Concern, 62 AM. J. INT'L L. 1, 18 (1969)
(international peace and security and the protection of human rights are
inescapably interdependent; impact of flagrant deprivations of basic human
rights does not stop within territorial boundaries in which deprivation
occurred). Nevertheless, the United Nations rarely has used sanctions. For a
review of cases in which economic sanctions have been used, see R. LILLICH &
R. NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW AND POLICY 415-20 (1979).
Sanctions against Rhodesia and South Africa are the only examples of full-scale
application of such sanctions by the United Nations. See id. at 388-482
(full discussion of background and effect of sanctions).
n21 Under the auspices of the Organization of African Unity (OAU),
Zaire, Nigeria, Senegal, Guinea, Benin, and Togo provided troops to be
interposed between forces of the official government, led by President Goukouni
Oueddie, and rebel forces, led by former defense minister Hissene Habu. The OAU
forces replaced Libyan troops, which had arrived eleven months earlier. Wash.
Post, Nov. 28, 1981, at A24, col. 3; Wash. Post, Nov. 16, 1981, at A22, col.
3.
n22 Compare A.J. THOMAS & A.V.W. THOMAS,
NON-INTERVENTION 312 (1956) (only nonforceful measures may be used by an
individual state to protect its nationals in other states) and Fonteyne,
supra note 20, at 242 (classical view of U.N. Charter interprets article
2(4), prohibiting threat or use of force against the territorial integrity or
political independence of any state, to encompass entire range of possible
situations) with Lillich, Intervention to Protect Human Rights, 15
MCGILL L.J. 205, 216 (1969) (pending establishment of effective machinery on
international level to govern use of force in human rights situations, a limited
right of forcible self-help exists despite provisions in articles 2(4) and 2(7)
of the Charter) and Nanda, The United States' Action in the 1965
Dominican Crisis: Impact on World Order (pt. 1), 43 DEN. L.J. 439, 458
(1966) (state should be allowed to intervene for the protection of its nationals
in appropriate situations).
n23 See Fonteyne,
supra note 20, at 251 (some writers endorse argument that self-help to
protect one's own nationals can be deemed included within the inherent right of
self-defense retained by article 51).
n24 The relevant
section states: "All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes
of the United Nations." U.N. CHARTER art. 2, para. 4.
n25 E.g., Reisman, Memorandum Upon Humanitarian Intervention to
Protect the Ibos 15-16 (unpublished paper written with the collaboration of
Professor McDougal, 1968), cited in Lillich, supra note 22, at 212
n.36 (1969).
n26 Cf. U.N. CHARTER art. 1, para.
3, which states: "The Purposes of the United Nations are, [inter alia,] . . .
[t]o achieve international cooperation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion . . . ."
n27 G.A. Res. 2625(XXV), 25 U.N. GAOR Supp. (No. 28) at
121, U.N. Doc. A/8028 (1970).
n28 Cf. Fonteyne,
Forcible Self-Help by States to Protect Human Rights: Recent Views from the
United Nations, in HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 197, 216
(R. Lillich ed. 1973) (few representatives on the Special Committee on
Principles of International Law Concerning Friendly Relations and Co-operation
Among States explicitly claimed that intervention to remedy gross violations of
human rights was lawful as an implicit exception to Charter principles
prohibiting use of force and intervention).
n29 The
International Military Tribunal at Nuremberg (Nurnberg), November 14, 1946, and
the International Military Tribunal for the Far East, Tokyo, February 15, 1946
to November 12, 1948, are the best-known war crimes tribunals. See
generally The Nurnberg Trial, 6 F.R.D. 69 (1946); L. SOHN, CASES ON UNITED
NATIONS LAW 898-967 (1st ed. 1956) (excerpts from the official text of the main
judgment and of the separate and dissenting opinions in the Tokyo trial). For a
bibliography of war crimes trials, see J. LEWIS, UNCERTAIN JUDGMENT: A
BIBLIOGRAPHY OF WAR CRIMES TRIALS (1979).
n30
Concerning the defense of having acted on behalf of the state, the Nuremberg
court pointed out that "[c]rimes against international law are committed by men,
not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced." The Nurnberg Trial,
6 F.R.D. 69, 110 (1946). The court then cited article 7 of the Charter annexed
to the Agreement establishing the Nuremberg Tribunal, which declared, "The
official position of defendants, whether as heads of state, or responsible
officials in government departments, shall not be considered as freeing them
from responsibility or mitigating punishment." Id.
As to the defense of "following orders," the court cited article 8 of
the Charter, which stated: "The fact that the defendant acts pursuant to orders
of his Government or a superior shall not free him from responsibility, but may
be considered in mitigation of punishment." Id. The Tokyo court was "in
complete accord" with the Nuremberg Tribunal's findings on these issues. L.
SOHN, supra note 29, at 906.
n31 The Nurnberg
Trial, 6 F.R.D. 69, 110 (1946).
n32 G.A. Res. 95, U.N.
Doc. A/64/Add.1 (1947), reprinted in 1 UNITED NATIONS RESOLUTIONS ser. 1,
at 175 (Djonovich ed. 1972).
n33 Report of the
International Law Commission to the General Assembly, 4 U.N. GAOR Supp. (No. 10)
at 1, U.N. Doc. A/925 (1949).
n34 Definition of
Aggression, G.A. Res. 3314, 29 U.N. GAOR Supp. (No. 31) at 142, U.N. Doc. A/9631
(1974). Article 1 defines aggression as "the use of armed force by a state
against the sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the Charter of the
United Nations, as set out in the Definition." Id. art. 1. For a
comprehensive history of the preparation of this document, see B. FERENCZ,
DEFINING INTERNATIONAL AGGRESSION (1975). For a critical discussion of this
definition, see Stone, Holes and Loopholes in the Definition of
Aggression, 71 AM. J. INT'L L. 224 (1977).
n35
See, e.g., G.A. Res. 36/759, U.N. Doc. A/RES./36/759 (1981);
International Convention Against the Taking of Hostages, G.A. Res. 34/146, 34
U.N. GAOR Supp. (No. 46) at 245, U.N. Doc. A/34/46 (1980); International
Convention on the Suppression and Punishment of the Crime of "Apartheid," G.A.
Res. 3068, 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974);
Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents, G.A. Res. 3166, 27 U.N. GAOR
Supp. (No. 30), U.N. Doc. A/8730 (1973); Declaration on the Prevention of
Nuclear Catastrophe, G.A. Res. 36/100, U.N. Doc. A/RES./36/100 (1981) (statesmen
and states that first resort to the use of nuclear weapons will be committing
the gravest crime against humanity).
n36 See,
e.g., U.N. CHARTER art. 1, para. 3; id. art. 55. The U.N. Charter
gives to the Economic and Social Council the responsibility for making
"recommendations for the purpose of promoting respect for, and observance of,
human rights and fundamental freedoms for all." Id. art. 62, para. 2.
See also id. art. 13, para. 1(b).
n37
Approved Dec. 10, 1948, G.A. Res. 217A, U.N. Doc. A/810 at 56 (1948)
[hereinafter cited as Universal Declaration]. Among the rights included in the
Universal Declaration are the following: the right to life, liberty, and
security of person (art. 3); the right to be free from arbitrary arrest,
detention, or exile (art. 9); the right to marry and found a family (art. 16);
the right to freedom of thought, conscience, and religion (art. 18); and the
right to education (art. 26).
n38 Entered into
force Mar. 23, 1976, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 52,
U.N. Doc. A/6316 (1966) [hereinafter cited as Covenant on Civil and Political
Rights]. Part II of this Article discusses in detail the Covenant on Civil and
Political Rights.
n39 Entered into force Jan. 3,
1976, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.A/6316 (1966)
[hereinafter cited as Covenant on Economic, Social and Cultural Rights]. Part
III of this Article discusses in detail the Covenant on Economic, Social and
Cultural Rights.
This process of elaboration may be
illustrated by the development of the right to form trade unions. In 1948, the
Universal Declaration confined discussion of this right to a simple statement:
"Everyone has the right to form and to join trade unions for the protection of
his interests." Universal Declaration, supra note 37, art. 23. In 1966,
the Covenant on Economic, Social and Cultural Rights gave greater definition to
this right. Article 8 of the Covenant declares:
(1) The
States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union
of his choice, subject only to the rules of the organization concerned, for the
promotion and protection of his economic and social interests. No restrictions
may be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of
others;
(b) The right of trade unions to establish
national federations or confederations and the right of the latter to form or
join international trade-union organizations;
(c) The
right of trade unions to function freely subject to no limitations other than
those prescribed by law and which are necessary in a democratic society in the
interests of national security or public order or for the protection of the
rights and freedoms of others;
(d) The right to strike,
provided that it is exercised in conformity with the laws of the particular
country.
n40 For the text of the documents, see UNITED
NATIONS, HUMAN RIGHTS: A COMPILATION OF INTERNATIONAL INSTRUMENTS, U.N. Doc.
ST/HR/1/Rev. 1 (1978). See, e.g., Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A.
Res. 36/55, U.N. Doc. A/RES/36/55 (1981).
n41 See,
e.g., C. DICKENS, BLEAK HOUSE (1853). The following passage demonstrates
Dickens' dim view of the legal system:
This is the
Court of Chancery; which has its decaying houses and its blighted lands in every
shire; which has its worn-out lunatic in every madhouse, and its dead in every
churchyard; which has its ruined suitor, with his slipshod heels and threadbare
dress, borrowing and begging through the round of every man's acquaintance;
which gives to monied might the means abundantly of wearying out the right;
which so exhausts finances, patience, courage, hope; so overthrows the brain and
breaks the heart; that there is not an honourable man among its practitioners
who would not give -- who does not often give -- the warning, 'Suffer any wrong
that can be done you, rather than come here!' Id. at 6-7.
See also E. ZOLA, GERMINALE (1885).
n42
Universal Declaration, supra note 37, preamble.
n49 Mrs.
Roosevelt was obliged to state on behalf of the United States that the
Declaration "was not a treaty or international agreement and did not impose
legal obligations." 3 U.N. GAOR (pt. 1, 3d Comm.) at 32 (1948).
n50 See Sohn, A Short History of the United Nations Documents
on Human Rights, in COMMISSION TO STUDY THE ORGANIZATION OF PEACE, 18TH
REPORT, THE UNITED NATIONS AND HUMAN RIGHTS 39, 68-70 (1968).
n51 Id. at 70.
n52 Universal
Declaration, supra note 37, preamble.
n53 G.A.
Res. 285(III), U.N. Doc. A/900 (1949).
n54 See,
e.g., S.C. Res. 182, 18 U.N. SCOR Supp. (Oct.-Dec. 1963) at 103, U.N. Doc.
S/5471 (1963).
n55 G.A. Res. 1514(XV), 15 U.N. GAOR
Supp. (No. 16) at 66, U.N. Doc. A/4684 (1960); G.A. Res. 1904(XVIII), 18 U.N.
GAOR Supp. (No. 15) at 35, U.N. Doc. A/5515 (1963).
n56
23 U.N. GAOR Supp. (No. 41) at 1, U.N. Doc. A/Conf.32/41 (1968) [hereinafter
cited as Declaration of Teheran].
n57 Id. para.
2.
n58 Final Act of the Conference on Security and
Cooperation in Europe (Helsinki Final Act), Aug. 1, 1975, 14 INT'L LEGAL
MATERIALS 1292 (1975).
n59 Id. Pt. 1(a)(VII), at
1295.
n60 DECLARATION OF THE RIGHTS OF MAN AND OF THE
CITIZEN art. 2 (1789), reprinted in I. BROWNLIE, BASIC DOCUMENTS ON HUMAN
RIGHTS 8-10 (1971).
n61 J. MARITAIN, THE RIGHTS OF MAN
AND NATURAL LAW 65 (D. Anson trans. 1951). See also M. CRANSTON, WHAT ARE
HUMAN RIGHTS? 11 (1973) (noting the resurgence of natural law; as a living, as
well as an ancient, concept, it is potentially fallacious despite claims that it
is binding all over the globe).
n62 Universal
Declaration, supra note 37, preamble; Covenant on Civil and Political
Rights, supra note 38, preamble; Covenant on Economic, Social and
Cultural Rights, supra note 39, preamble.
n63
G.A. Res. 32/130, 32 U.N. GAOR Supp. (No. 45) at 151, U.N. Doc. A/32/45
(1977).
n64 Covenant on Civil and Political Rights,
supra note 38, art. 4(1).
n65 Id. arts.
6, 7, 8(1)-(2), 11, 15, 16, 18.
n66 Id. arts.
12, 14, 17, 18(33), 19, 21, 22.
n67 Article 8(1) of the
Covenant on Economic, Social and Cultural Rights, supra note 39, provides
in part: "No restrictions may be placed on the exercise of [the right to form
and join trade unions] other than those prescribed by law and which are
necessary in a democratic society in the interests of national security or
public order or for the protection of the rights and freedoms of others . . .
."
n68 Id. art. 4.
n69
See infra notes 190-93 and accompanying text.
n70 Covenant on Civil and Political Rights, supra note 38, art.
2(2), (3)(a). See also UNITED NATIONS, UNITED NATIONS ACTION IN THE FIELD
OF HUMAN RIGHTS, U.N. Doc. ST/HR/2/Rev. 1 (1980) [hereinafter cited as UNITED
NATIONS ACTION].
n71 Covenant on Economic, Social and
Cultural Rights, supra note 39, art. 2(1), (3). The progressive nature of
the Covenant is discussed further at infra notes 194-203 and accompanying
text.
n72 Covenant on Civil and Political Rights,
supra note 38, art. 2(1), (3).
n73 Supra
notes 64-68 and accompanying text.
n74 See supra
note 49 and accompanying text.
n75 MULTILATERAL
TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT 31 DECEMBER 1981 at
108-34, U.N. Doc. ST/LEG/SER.E/1 (1982) (to date, 71 nations have ratified or
have acceded to the Covenant on Economic, Social and Cultural Rights; 69 nations
have ratified or have acceded to the Covenant on Civil and Political Rights, and
27 nations have ratified or have acceded to the Optional Protocol) [hereinafter
cited as MULTILATERAL TREATIES].
n76 Convention for the
Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S.
222 [hereinafter cited as European Convention].
n77 See
L. SOHN & T. BUERGENTHAL, supra note 3, at 1008-99, 1104-48 (1973),
for a discussion of these two institutions and their work.
n78 American Convention on Human Rights, entered into force July
18, 1978, OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1, OAS Treaty Series, No. 36
(1970). For a discussion of human rights in the Americas and the American
Convention on Human Rights, see Symposium: The American Convention on Human
Rights, 30 AM. U.L. REV. 1-223 (1980).
n79 Approved
in Nairobi by the Organization of African Unity (July, 1981), reprinted
in 21 INT'L LEGAL MATERIALS 59 (1982) as the Banjul Charter on Human and
Peoples' Rights, O.A.U. Doc. CAB/LEG./67/3/Rev.5. For a concise presentation of
the history of the drafting of the Charter, see Gittleman, Organization of
African Unity: Banjul Charter on Human and Peoples' Rights. Introductory
Note, 21 INT'L LEGAL MATERIALS 58 (1982). Although there was initial
confusion regarding the official title of the Charter, the authoritative title
appears to be, and is hereinafter cited as, the African Charter on Human and
Peoples' Rights.
n80 Covenant on Civil and Political
Rights, supra note 38, art. 5; Covenant on Economic, Social and Cultural
Rights, supra note 39, art. 5.
n81 This
provision is stronger in the Covenant on Civil and and Political Rights than in
the Covenant on Economic, Social and Cultural Rights. The former provides that
"each State Party. . . undertakes to take the necessary steps, in accordance
with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to
give effect to the rights recognized in the present Covenant." Covenant on Civil
and Political Rights, supra note 38, art. 2(2). The parallel provision in
the Covenant on Economic, Social and Cultural Rights, in contrast, is subject to
the availability of necessary resources: "Each State Party . . . undertakes to
take steps, individually and through international assistance and co-operation
especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights
recognized in the present Covenant . . . ." Covenant on Economic, Social and
Cultural Rights, supra note 39, art. 2(1).
n82
Covenant on Civil and Political Rights, supra note 38, art. 2(3).
n83 Covenant on Civil and Political Rights, supra
note 38, art. 40.
n84 Id. art. 41(1).
n85 Id.
n86 MULTILATERAL
TREATIES, supra note 75, at 127-28; Report of the Human Rights Committee,
36 U.N. GAOR Supp. (No. 40) at 96-97, U.N. Doc. A/36/40 (1981). The 14 countries
accepting article 41 jurisdiction are Austria, Canada, Denmark, Finland, the
Federal Republic of Germany, Iceland, Italy, the Netherlands, New Zealand,
Norway, Senegal, Sri Lanka, Sweden, and the United Kingdom. Id.
n87 Optional Protocol to the International Covenant on
Civil and Political Rights, entered into force Mar. 23, 1976, G.A. Res.
2200A, 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966) [hereinafter
cited as Optional Protocol]. See Report of the Human Rights Committee,
supra note 86, at 95-96. The report lists 25 States Parties as of July
31, 1981: Barbados, Canada, Columbia, Costa Rica, Denmark, the Dominican
Republic, Ecuador, Finland, Iceland, Italy, Jamaica, Madagascar, Mauritius, the
Netherlands, Nicaragua, Norway, Panama, Peru, Senegal, Suriname, Sweden,
Trinidad and Tobago, Uruguay, Venezuela, and Zaire. Id. As of December
31, 1981, the Central African Republic and Saint Vincent and the Grenadines had
also acceded to the Optional Protocol. MULTILATERAL TREATIES, supra note
75, at 131.
n88 Covenant on Civil and Political Rights,
supra note 38, art. 41(1)(c); Optional Protocol, supra note 87,
art. 2. See also supra note 9 and accompanying text.
n89 Covenant on Civil and Political Rights, supra note 38,
preamble.
n90 See note 87 and accompanying
text.
n91 The Greek Case, [1969] Y.B. EUR. CONV. ON
HUMAN RIGHTS 12 (Eur. Comm'n on Human Rights). See generally L. SOHN
& T. BUERGENTHAL, supra note 3, at 1059-90.
n92 Covenant on Civil and Political Rights, supra note 38, arts.
6-10, 14-16. One can also include within this group article 11, which proscribes
imprisoning an individual merely because he has failed to fulfill a contractual
obligation.
n93 Id. arts. 12-13. See
infra notes 128-53 and accompanying text.
n94
Covenant on Civil and Political Rights, supra note 38, art. 17.
n95 Id. arts. 23-24.
n96
Covenant on Economic, Social and Cultural Rights, supra note 39, arts.
10-14. It may be noted that in a recent case, in response to a petition by two
prisoners, the European Commission of Human Rights decided that the United
Kingdom's legislation forbidding a prisoner from marrying was contrary to the
European Convention, supra note 76. The government of the United Kingdom
agreed to present to the Parliament legislation to remove the restriction. U.N.
Doc. E/CN.4/1982/1 at 31-33 (1982). The two prisoners, one serving a life
sentence, the other a term of years, petitioned the European Commission on Human
Rights under article 25 of the Convention, which authorizes such petitions.
n97 Covenant on Civil and Political Rights, supra
note 38, arts. 18(1), 19, 21, 22, 25.
n98 Universal
Declaration, supra note 37, art. 17.
n99
Protocol [No. 1] to the Convention for the Protection of Human Rights and
Fundamental Freedoms, March 20, 1952, 213 U.N.T.S. 262 (1955).
n100 Id. art. 1.
n101 See, e.g.,
Asian-African Legal Consultative Committee, Principles concerning Admission and
Treatment of Aliens, art. 12(1), 4 ASIAN-AFRICAN LEGAL COMM. REP. 49 (1961)
(compensation for expropriated property shall be paid "in accordance with local
laws, regulations and orders").
n102 Covenant on Civil
and Political Rights, supra note 38, art. 2(1). Compare id. with
U.N. CHARTER art. 1(3) (promotion of human rights "without distinction as to
race, sex, language or religion").
n103 Id. art.
3.
n104 Id. art. 26.
n105 Id. arts. 14(1), 16.
n106
Id. art. 23(4).
n107 International Convention on
the Elimination of All Forms of Racial Discrimination, supra note 40.
n108 See MULTILATERAL TREATIES, supra note
75, at 96-97. The United States is not a party to the Convention; although it
signed the Convention, it has neither ratified nor acceded thereto.
Id.
n109 International Convention on the
Elimination of All Forms of Racial Discrimination, supra note 40, art.
1(i).
n110 Id. art. 1(2).
n111 Id. art. 1(4).
n112 Id.
art. 2(1).
n113 Id. art. 5. This article lists,
in outline form, the rights guaranteed individuals by both Covenants on Human
Rights, and adds a public accommodations section guaranteeing the "right of
access to any place or service intended for use by the general public, such as
transport, hotels, restaurants, cafes, theatres [and] parks." Id.
n114 Covenant on Civil and Political Rights, supra
note 38, art. 18.
n118 Covenant on Civil and Political
Rights, supra note 38, art. 27. For background concerning the limited
nature of the right codified in article 27, see generally F. CAPOTORTI, STUDY ON
THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES,
U.N. Pub. E.78.XIV.1 (1978); Sohn, The Rights of Minorities, in THE
INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 270-89
(L. Henkin ed. 1981).
n119 See generally infra
notes 243-58 and accompanying text.
n120 General
Comments Under Article 40, Paragraph 4 of the Covenant, adopted July 28, 1981 by
the Committee on Human Rights at its 311th meeting (13th session), U.N. Doc.
CCPR/C/21 at 4 (1981) (General Comment 4/13(2)).
n121
International Labour Organisation Convention (No. 111), adopted June 25,
1958, 362 U.N.T.S. 31 (1960) (States Parties agree to formulate a national
policy to promote equality of opportunity and treatment in respect of employment
and occupation and to work toward obtaining the cooperation of employers' and
workers' organizations and other appropriate groups in achieving this goal of
eliminating discrimination based on "race, colour, sex, religion, political
origin, national extraction or social origin").
n122
Entered into force May 22, 1962, reprinted in UNESCO, UNESCO'S
STANDARD-SETTING INSTRUMENTS § I.A.1 (1981) (States Parties to the Convention
agree, inter alia, to abrogate any laws and discontinue any administrative
practices that involve discrimination in education, based on "race, colour, sex,
language, religion, political or other opinion, national or social origin,
economic condition or birth," to give foreign nationals living in their
territory access to education equal to that given their own nationals, and to
ensure that there is no discrimination in the admission of pupils to educational
institutions).
n123 Opened for signature June
29, 1951, 165 U.N.T.S. 303 (entered into force May 23, 1953) (States Parties
agree to promote, by laws, regulations, collective agreements, wage
determination, or a combination thereof, equal remuneration for men and women
for work of equal value).
n124 G.A. Res. 640 (VII), 7
U.N. GAOR Supp. (No. 20) at 27, U.N. Doc. A/2361 (1952) (States Parties agree to
accord women voting rights equal to those enjoyed by men and to make women
eligible for election to all publicly elected bodies, on terms equal with
men).
n125 G.A. Res. 1040, 11 U.N. GAOR Supp. (No. 17)
at 18, U.N. Doc. A/3572 (1957) (each Contracting State agrees that neither the
contract of marriage nor the dissolution of marriage between an alien and one of
its nationals nor the change of nationality of the husband during marriage, will
automatically affect the nationality of the wife).
n126
G.A. Res. 1763A(XVII), 17 U.N. GAOR Supp. (No. 17) at 28, U.N. Doc. A/5217
(1963) (designed to ensure that no marriages would be given legal effect in the
absence of full and free consent of both parties).
n127
G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1980)
(States Parties agree to take all appropriate measures, including legislation,
to ensure full development and advancement of women in political, social,
economic, and cultural fields, in order to guarantee them the exercise and
enjoyment of human rights and fundamental freedoms on basis equal to that of
men).
n128 See generally Dinstein, The Right
to Life, Physical Integrity and Liberty, in THE INTERNATIONAL BILL OF
RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 114-37 (L. Henkin ed.
1981).
n129 Covenant on Civil and Political Rights,
supra note 38, art. 6(1).
n130 Id. art.
6(2).
n131 Id. art. 6(5).
n132 Id. art. 9(1).
n133 Id.
n134 Id. art. 9(3).
n135
Id. art. 9(4).
n136 Id. art. 9(5).
n137 See, e.g., Ringeisen v. Austria (1971), Ser.
A, No. 13, 1 E.H.H.R. 455 (1980); Stogmuller v. Austria (1969), Ser. A, No. 9, 1
E.H.H.R. 155 (1979).
n138 Covenant on Civil and
Political Rights, supra note 38, art. 12(4).
n139 See, e.g., Alam v. United Kingdom, in EUROPEAN COMMISSION
ON HUMAN RIGHTS, STOCK-TAKING ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS 19,
Council of Europe Doc. DH(72)2 (1972).
n140 Id.
art. 17(1).
n141 See, e.g., 13 U.N. GAOR Annex
(Agenda Item 32) at 6-8, U.N. Doc. A/4045 (1958) (debate about use of term
"arbitrary" in article 9 of the Covenant on Civil and Political Rights); 12 U.N.
GAOR Annex (Agenda Item 33) at 12-13, U.N. Doc. A/3764/Add.1 (1957) (debate
about use of term "arbitrary" in article 6 of the Covenant on Civil and
Political Rights). See also Hassan, The Word "Arbitrary" as Used in
the Universal Declaration of Human Rights: "Illegal" or "Unjust"?, 10 HARV.
INT'L L.J. 225 (1969).
n142 See supra note
141.
n143 Covenant on Civil and Political Rights,
supra note 38, art. 9(1) ("No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by
law.").
n150 1935
P.C.I.J., Ser. A/B, No. 65, at 41 (Advisory Opinion of Dec. 4).
n151 Id. at 56.
n152 Id.
n153 Id.
n154 See,
e.g., Research in International Law of the Harvard Law School, The Law of
Responsibility of States for Damage Done in Their Territory to the Person or
Property of Foreigners, 23 AM. J. INT'L L. 131, 188-93 (Special Supp. 1929)
(mob violence cases).
n155 10 U.N. GAOR Annex (Agenda
Item 28, add. pt. II) at 30, U.N. Doc. A/2929 (1955) [hereinafter cited as
Agenda Item 28].
n156 Cf. Covenant on Civil and
Political Rights, supra note 38, art. 20 (obligation to prohibit by law
any propaganda for war, any advocacy of national, racial, or religious hatred
that constitutes incitement to discrimination, hostility, or violence).
n157 MULTILATERAL TREATIES, supra note 75, at 126.
In its reservation, the United Kingdom indicated that it interpreted article 20
in a manner consistent with articles 19 and 21 of the Covenant, guaranteeing the
rights to hold opinions without interference and to assemble peacefully, and,
having "legislated in matters of public order," reserved the right not to
introduce any further legislation. Id.
n158
Id. at 120-25 (Denmark, Finland, Iceland, Norway, and Sweden).
n159 Four Treaties Pertaining to Human Rights: Message
from the President of the United States xi-xii (95th Cong., 2d Sess., Executives
C, D, E, and F 1978). Cf. 21 U.N. GAOR (1496th plen. mtg.) (Agenda Item
62) at 61-62, U.N. Doc. A/PV. 1496 (1966) (United States expressed concern about
compatibility of article 20 with first amendment to U.S. Constitution).
n160 See generally THE ORIGINS OF THE INTERNATIONAL
LABOR ORGANIZATION (J. Shotwell ed. 1934).
n161 See,
e.g., INTERNATIONAL LABOUR OFFICE, CONVENTIONS AND RECOMMENDATIONS ADOPTED
BY THE INTERNATIONAL LABOUR CONFERENCE, 1919-1966 (1966).
n162 Eighth Annual Message to Congress, Jan. 6, 1941, reprinted
in 3 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2855
(1966).
n163 Id. at 2860.
n164 Eleventh Annual Message to Congress, Jan. 11, 1944, reprinted
in 3 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2875
(1966).
n165 Id. at 2881.
n166 Eighth Annual Message to Congress, supra note 162, at
2859.
n167 Id. at 2860.
n168 Id. at 2860-61.
n169 Eleventh
Annual Message to Congress, supra note 164, at 2876.
n170 Id.
n171 Id. at 2880.
n172 Id. at 2881.
n173
Id.
n174 Id.
n175 See U.S. DEPARTMENT OF STATE, POSTWAR FOREIGN POLICY
PREPARATION, 1939-1945, at 483 (1949).
n176 12 DEP'T
ST. BULL. 928, 928-29 (1945).
n177 3 U.N. INFORMATION
ORGANIZATION, DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONAL
ORGANIZATION 546-47 (1945).
n178 U.N. CHARTER
preamble.
n179 Id. art. 55.
n180 Id.
n181 Universal Declaration,
supra note 37, art. 22.
n182 Id. arts.
23-28.
n183 See supra note 39.
n184 MULTILATERAL TREATIES, supra note 75, at 108.
Although several countries made reservations with respect
to certain provisions of the Covenant, India's reservations concerning article 1
were especially objectionable to France, the Netherlands, and the Federal
Republic of Germany. Id. at 113. India declared that "the words 'the
right of self-determination' appearing in [this article] apply only to the
peoples under foreign domination and that these words do not apply to sovereign
independent States or to a section of a people or nation -- which is the essence
of national integrity." Id. at 110. Of the three countries that objected
to India's reservation, the Federal Republic of Germany registered the strongest
dissent:
The right of self-determination as enshrined
in the Charter of the United Nations and as embodied in the Covenants applies to
all peoples and not only to those under foreign domination. All peoples,
therefore, have the inalienable right freely to determine their political status
and freely to pursue their economic, social and cultural development. The
Federal Government cannot consider as valid any interpretation of the right of
self-determination which is contrary to the clear language of the provisions in
question. It moreover considers that any limitation of their applicability to
all nations is incompatible with the object and purpose of the Covenants. Id. at 113.
n185 Id. at 113. The
Philippines ratified the Covenant on June 7, 1974, while Honduras ratified it on
February 17, 1981. Id.
n186 These states include
the Central African Republic (May 8, 1981); the Democratic People's Republic of
Korea (Sept. 14, 1981); Honduras (Feb. 17, 1981); Mexico (Mar. 23, 1981); and
Saint Vincent and the Grenadines (Nov. 9, 1981). MULTILATERAL TREATIES,
supra note 75, at 108.
n188
G.A. Res. 421(V), 5 U.N. GAOR Supp. (No. 20) at 42-43, U.N. Doc. A/1775
(1950).
n189 See generally SEMINAR ON THE
REALIZATION OF ECONOMIC AND SOCIAL RIGHTS CONTAINED IN THE UNIVERSAL DECLARATION
OF HUMAN RIGHTS, at 5-13, U.N. Doc. ST/TAO/HR/31 (1967) [hereinafter cited as
Seminar on Economic and Social Rights].
n190 13 U.N.
ESCOR at 405-19, U.N. Doc. E/SR.524 (1951); Seminar on Economic and Social
Rights, supra note 189, at 6.
n191 G.A. Res.
543(VI), 6 U.N. GAOR Supp. (No. 20) at 36, U.N. Doc. A/2119 (1952).
n194 See Agenda Item 28, supra note 155, at 19-20; 17
U.N. GAOR Annex (Agenda Item 43) at 6-17, U.N. Doc. A/5365 (1962).
n195 Covenant on Economic, Social and Cultural Rights,
supra note 39, art. 2, para. 1.
n196 See
id. arts. 13, 14. Article 14, for example, provides that each State Party,
which was not able to provide free, compulsory education when it became a Party,
"undertakes, within two years, to work out and adopt a detailed plan of action
for the progressive implementation, within a reasonable number of years, to be
fixed in the plan, of the principle of [free] compulsory education." See also
id. arts. 6(2), 12(2), 15(2).
n197 "Each State
Party . . . undertakes to take steps . . . with a view to achieving
progressively the full realization of the rights recognized in the present
Covenant . . . ." Id. art. 2(1).
n198
Id.
n199 Id.
n200 For a discussion of the history and preparation of the
International Covenant on Economic, Social and Cultural Rights, see COMMISSION
TO STUDY THE ORGANIZATION OF PEACE, supra note 50, at 101-69 (1968).
n201 Id. See also Agenda Item 28, supra note
155, at 20.
n202 Covenant on Economic, Social and
Cultural Rights, supra note 39, art. 22.
n203
Id. art. 23.
n204 Id. art. 2(2).
n205 Agenda Item 28, supra note 155, at 20.
n206 Compare Covenant on Economic, Social and
Cultural Rights, supra note 39, art. 2(1) (states may achieve
progressively the rights recognized in the Covenant) with id. art. 2(2)
(states undertake to guarantee that the rights recognized in the Covenant will
be exercised without discrimination).
n207 Id.
art. 2(3).
n208 For a discussion of the special meaning
of the term "discrimination" in the international legal setting, see Norris
& Reiton, The Suspension of Guarantees: A Comparative Analysis of the
American Convention on Human Rights and the Constitutions of the States
Parties, 30 AM. U.L. REV. 189, 203-05 (1981). The prohibition of
discrimination
does not forbid special measures of
protection designed to aid depressed groups, classes or categories of
individuals, so long as these special measures are not carried on longer than is
reasonably necessary. The preservation of linguistic, cultural and religious
facilities for minority groups is also consistent with the non-discrimination
principle. Id. at 204 n.105 (quoting McKean, The Meaning
of Discrimination in International and Municipal Law, 1970 BRIT. Y.B. INT'L
L. 177, 185-86 (1971)).
n209 Covenant on Economic,
Social and Cultural Rights, supra note 39, art. 3.
n210 See McDougal, Lasswell & Chea, Human Rights for
Women and World Public Order: The Outlawing of Sex-Based Discrimination, 69
AM. J. INT'L L. 497, 511-13 (1975) (discussing the impact of the Covenant's
provisions in reinforcing the general norm against sex-based discrimination).
n211 See supra note 209 and accompanying text.
n212 See Covenant on Civil and Political Rights,
supra note 38, art. 4. Article 4 states in part: "In time of public
emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the . . . Covenant may take
measures derogating from their obligations under the . . . Covenant to the
extent strictly required by the exigencies of the situation . . . ."
n214 Covenant on Economic, Social and Cultural
Rights, supra note 39, art. 4.
n215 Id.
art. 8.
n216 Id. art. 4.
n217 Id. art. 4.
n218 Id. art.
8(1)(a), (1)(c).
n219 Covenant on Civil and Political
Rights, supra note 38, arts. 21, 22.
n220 Agenda
Item 28, supra note 155, at 54.
n221 243 ANNALS
OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 18, 26 (1946).
n222 See 3 U.N. INFORMATION ORGANIZATION,
supra note 177, at 265.
n223 243 ANNALS OF THE
AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 18, 26 (1946).
n224 Covenant on Economic, Social and Cultural Rights, supra
note 39, art. 7.
n225 See, e.g., id. art. 11(1)
(recognizing, inter alia, right to the continuous improvement of living
conditions); art. 11(2) (calling for improvement in methods of production,
conservation, and distribution of food); art. 12 (identifying as goals a
reduction in infant mortality and improvements in environmental and industrial
hygiene).
n226 Id. art. 18.
n227 Id. art. 6(1).
n228 Id.
n229 Id.
n230 Id.
art. 6(2).
N231 Id.
n232 President Roosevelt's Four Freedoms speech, supra note 162
and accompanying text, placed the right to work in the context of limiting
special privileges, preserving civil liberties, and a constantly rising standard
of living as a result of scientific progress. See Covenant on Economic,
Social and Cultural Rights, supra note 39, art. 15, para. (1)(b).
n233 U.N. CHARTER art. 55, para. a.
n234 Article 9 of the Covenant of Economic, Social and Cultural Rights,
supra note 39, provides in full: "The States Parties to the present
Covenant recognize the right of everyone to social security including social
insurance."
n235 E.g., International Labour
Organisation Convention (No. 118) Concerning Equality of Treatment of Nationals
and Non-nationals in Social Security, adopted June 28, 1962, 494 U.N.T.S.
271 (1964); International Labour Organisation Convention (No. 117) Concerning
Basic Aims and Standards of Social Policy, adopted June 22, 1962, 494
U.N.T.S. 249 (1964).
n236 See Agenda Item 28,
supra note 155, at 107.
n237 International
Covenant on Economic, Social and Cultural Rights, supra note 39, arts.
13, 14.
n238 Id. In France, since the
constitutions of 1791 and 1793, education was considered a necessity for all,
and the society had to provide free public instruction for all citizens.
See Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582, 1593
(1981).
n239 See Implementation of the
International Covenant on Economic, Social and Cultural Rights, Report of the
Sessional Working Group on the International Covenant on Economic, Social and
Cultural Rights, U.N. Doc. E/1981/64 (1981).
n240
Universal Declaration, supra note 37. Although the Universal Declaration
does not contain a reporting clause such as that contained in articles 16 and 17
of the International Covenant on Economic, Social and Cultural Rights, a system
of periodic reports was established in 1956, E.S.C. Res. 624B(XXII), 22 U.N.
ESCOR Supp. (No. 1) at 12, U.N. Doc. E/2929 (1956), but the reports were
discontinued in 1981, E.S.C. Decision 1981/151, 1981 U.N. ESCOR Supp. (No. 1) at
46 (1981). This discontinuance was a backward step; it would have been better if
the Council instead had followed the suggestions for a consolidation of various
procedures. See Sohn, The Improvement of the UN Machinery on Human
Rights, 23 INT'L STUD. Q. 186, 195-97 (1979).
n241
Cf. International Covenant on Economic, Social and Cultural Rights,
supra note 39, art. 18 (authorization for specialized agencies to report
to the Economic and Social Council on the progress that has been made in the
implementation of the Covenant). The United Nations has identified four
specialized agencies within its system as having a special interest in human
rights: the International Labour Organisation (ILO), the United Nations
Educational, Scientific and Cultural Organization (UNESCO), the World Health
Organization (WHO), and the Food and Agricultural Organization. UNITED NATIONS,
THE UNITED NATIONS AND HUMAN RIGHTS 15 (1978). See also UNITED NATIONS
ACTION, supra note 70, at 324-34.
n242 Oct. 18,
1961, 529 U.N.T.S. 89 (1965).
n243 For a thorough
examination of the Concert of Europe's role in achieving sovereignty for Belgium
and Greece, see R. ALBRECHT-CARRIE, THE CONCERT OF EUROPE 60-128 (1968).
Concerning the role of the Concert of Europe in the Balkans, see W. MENDICOTT,
THE CONGRESS OF BERLIN AND AFTER (1938).
n244 Atlantic
Charter, Aug. 14, 1941, United States-United Kingdom, 55 Stat. 1603, E.A.S. No.
236.
n245 U.N. CHARTER art. 1, para. 4; id. art.
55.
n246 Covenant on Civil and Political Rights,
supra note 38, art. 1(1); Covenant on Economic, Social and Cultural
Rights, supra note 39, art. 1(1).
n247 Article
1(3) of the Covenant on Civil and Political Rights, supra note 38, is
identical to article 1(3) of the Covcnant on Economic, Social and Cultural
Rights, supra note 39. That article provides, in part, that "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."
n248 U.N. CHARTER arts.
73, 76. Article 73, for example, provides in part: Members of the United Nations
which have . . . responsibilities for the administration of territories whose
peoples have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories are
paramount, and accept as a sacred trust the obligation to promote to the utmost
. . . the well-being of the inhabitants of these territories . . . .
n249 For the Indian reservation and responses thereto, see
supra note 184.
n250 The Covenant states: "In
those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language." Covenant on Civil
and Political Rights, supra note 38, art. 27.
n251 Covenant on Civil and Political Rights, supra note 38, art.
1(2); Covenant on Economic, Social and Cultural Rights, supra note 39,
art. 1(2). Article 1(2), identical in both Covenants, states in full:
All peoples may, for their own ends, freely dispose of
their natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its own
means of subsistence.
n252 See supra note
251.
n253 Id.
n254 J.
KAUFMANN, UNITED NATIONS DECISION MAKING 98 (1980).
n255 Id.
n256 Because the Group of 77
constitutes a majority of most U.N. bodies, it has been argued that by voting on
proposed resolutions as a unit, the Group undermines the democratic process of
U.N. decisionmaking. Id. at 99. In practice, however, the Group has
realized that consensus decisionmaking is the foundation of the U.N. and, hence,
has been willing to negotiate on a variety of issues. Id.
n257 See supra note 115.
n258 Cf.
id. (resolution adopted without a vote).
n259
Covenant on Economic, Social and Cultural Rights, supra note 39, art.
1(1).
n260 See supra note 79.
n261 Id. art. 22(1).
n262 Id.
art. 22(2).
n263 INTERNATIONAL LABOUR ORGANISATION
CONSTITUTION annex § II(a), at 24 (1969). See 9 M. HUDSON, INTERNATIONAL
LEGISLATION 124 (1950).
n264 INTERNATIONAL LABOUR
ORGANISATION CONSTITUTION, supra note 263; M. HUDSON, supra note
263, at 126.
n265 U.N. CHARTER art. 55, para. a.
n266 Universal Declaration, supra note 37, art.
22.
n267 Id. art. 28.
n268 See, e.g., 33 U.N. ESCOR (1396th mtg.), U.N. Doc.
E/CN.4/SR.1396 at para. 36 (1977).
n269 Declaration of
Teheran, supra note 56, at 14, 16 (resolutions XVII and XXI).
n270 See generally M'Baye, Le droit au
developpement comme un droit de l'homme, 5 HUM. RTS. J. 505-34 (1972).
n271 Adopted Nov. 27, 1978, by the General Conference of
the United Nations Educational, Scientific and Cultural Organization at its 20th
Session, reprinted in UNESCO, supra note 122, § III.C.1.
n272 Id. art. 3.
n273
Report of the Working Group to the Commission on Human Rights, U.N. Doc.
E/CN.4/1489, at 5 (1982) [hereinafter cited as Report of the Working Group].
n274 Id. at 6.
n275
Id.
n276 Id.
n277 Id.
n278 Id. at 9.
n279 Id.
n280
Id.
n281 UNITED NATIONS, DEPARTMENT OF PUBLIC
INFORMATION, THESE RIGHTS AND FREEDOMS 60, U.N. Sales No. 1950.I.6 (1950).
n282 Report of the Working Group, supra note 273,
at 11.
n283 Id.
n284
G.A. Res. 34/46, para. 8, 34 U.N. GAOR Supp. (No. 46) at 171 (1980) (overall
analysis of the United Nations' approach to human rights). See also G.A.
Res. 35/174, para. 5, 35 U.N. GAOR Supp. (No. 48) at 196, U.N. Doc. A/35/48
(1981) (resolution urging member states to accede to or ratify international
instruments in the field of human rights).
n285 See,
e.g., Tornudd, The Relation between Human Rights, Peace and
Development at 9, U.N. Doc. HR/NEW YORK/1981/WP.1 (working paper presented
at the U.N. Seminar on the Relations That Exist between Human Rights, Peace and
Development, U.N. Doc. ST/HR/SER.A/10 (1981)) [hereinafter cited as U.N.
Seminar].
n286 The development of society is "one of
the essential means for ensuring individual development." It is more than mere
economic growth, involving also the "political, economic, social, cultural, and
spiritual dimensions of the quality of life. Societal development should aim
primarily at enabling the individual to dovetail his development with that of
society." U.N. Seminar, supra note 285, at 11 (footnote omitted).
See note 288 infra and accompanying text.
n287 Report of the Secretary-General, U.N. Doc. E/CN.4/1334 at 7-12
(1979).
n288 Id. at 13. See also Ferrero,
Study on the New International Economic Order and the Promotion of Human
Rights: Progress Report, at 22-25, U.N. Doc. E/CN.4/Sub.2/477 (1981)
(discussing the relationship between development and human rights; the right to
development is both collective and individual and is the "final goal and
objective of the new international economic order.").
n289 SOCIETE FRANCAISE POUR LE DROIT INTERNATIONAL, RAPPORT DU COLLOQUE
D'AIXEN-PROVENCE 28 (1973).
n290 J. NYERERE, FREEDOM
AND DEVELOPMENT: A SELECTION FROM WRITINGS AND SPEECHES, 1968-1973, at 58
(1973), quoted in Report of the Secretary-General, supra note 287,
at 70.
n291 See Report of the Secretary-General,
supra note 287, at 71-73. The report cites the Preambles to the Universal
Declaration of Human Rights and to both International Covenants on Human Rights
in support of the proposition that the maintenance of peace is fundamentally
linked to the realization of respect for human rights: "recognition of the
inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world."
Id. at 71.
n292 See id. at 78-81.
n293 U.N. Commission on Human Rights Res. 5(XXXII), 60
U.N. ESCOR Supp. (No. 3) at 62, U.N. Doc. E/5768 [E/CN.4/1213] (1976).
n294 Id.
n295
Id.
n296 Id. at 62.
n297 60 U.N. ESCOR Supp. (No. 3) at 23-24, U.N. Doc. E/5768
[E/CN.4/1213] (1976) (debate preceding adoption of the Commission's Res.
5(XXXII), supra note 293).
n298 Id.
n299 Supra note 58.
n300
U.N. Doc. E/5768, supra note 297, at 23-24.
n301
Id. at 26.
n302 62 U.N. ESCOR Supp. (No. 6) at
10, U.N. Doc. E/5927 [E/CN.4/1257] (1977) (debate preceding adoption of the
Commission's Res. 4(XXXIII), infra note 306).
n303 Id.
n304 Id. at 11-12.
n305 Id. at 12.
n306 U.N.
Commission on Human Rights Res. 4(XXXIII), 62 U.N. ESCOR Supp. (No. 6) at 75,
U.N. Doc. E/5927 [E/CN.4/1257] (1977).
n307 Id.
at 12.
n308 Report of the Secretary-General,
supra note 287. See supra notes 287-92 and accompanying text.
n309 1979 U.N. ESCOR Supp. (No. 6) at 27, U.N. Doc.
E/1979/36 [E/CN.4/1347] (debate preceding adoption of E.S.C. Res. 4(XXXV),
infra note 310).
n310 U.N. Commission on Human
Rights Res. 4(XXXV), 1979 U.N. ESCOR Supp. (No. 6) at 107, U.N. Doc. E/1979/36
[E/CN.4/1347].
n311 See Report of the
Secretary-General, supra note 287, at 81. In fact, it has been claimed
that as a corollary to an individual's right to peace, "[the individual's] first
international duty should be to unite with others to maintain international
peace and security." Daes, Study of the Individual's Duties to the Community
and the Limitations on Human Rights and Freedoms under Article 29 of the
Universal Declaration of Human Rights, U.N. Doc. E/CN.4/Sub.2/413, para.
520, quoted in id.
n312 G.A. Res. 33/73, 33 U.N.
GAOR Supp. (No. 45) at 55-56, U.N. Doc. A/33/45 (1979).
n313 Id. at 55.
n314 Id. at
56.
n315 G.A. Res. 33/73, U.N. Press Release GA/5942 at
109 (1979).
n316 African Charter of Human and Peoples'
Rights, supra note 79.
n317 Article 23 of the
Charter provides: "All peoples shall have the right to national and
international peace and security. The principles of solidarity and friendly
relations implicitly affirmed by the Charter of the United Nations and
reaffirmed by that of the Organization of African Unity shall govern relations
between States." Id. art. 23(1).
n318
Id.
n319 Id. art. 24.
n320 UNESCO, SYMPOSIUM ON NEW HUMAN RIGHTS: THE RIGHTS OF SOLIDARITY,
MEXICO CITY, 1980 at 3, UNESCO Doc. 55.81/CONF.806/4 (1981). See also id.
at 14-18.
n321 Report of the United Nations Conference
on the Human Environment, U.N. Doc. A/CONF. 48/14/Rev. 1, U.N. Pub. No.
E.73.IIA.14 at 3 (1974).
n322 Id. at 4,
Principle 1.
n323 U.N. Doc. A/CONF.48/PC/WG.1/CRP.4 at
65 (1971).
n324 Universal Declaration, supra
note 37, art. 25(1).
n325 Covenant on Economic, Social
and Cultural Rights, supra note 39, art. 11.
n326 See generally Marks, Emerging Human Rights: A New
Generation for the 1980's?, 33 RUTGERS L. REV. 435 (1981). See
Seminar on the Effects of the Existing Unjust International Economic Order on
the Economies of the Developing Countries and the Obstacle that this Represents
for the Implementation of Human Rights and Fundamental Freedoms, U.N. Doc.
ST/HR/SER.A/8 at 22 (1980); see also UNESCO, supra note 320, at 3.
But see Kirkpatrick, Double Standards in Human Rights 2, 2 (Dep't
of State Bureau of Public Affairs, U.S. Current Policy No. 353, Nov. 24,
1981).
n327 UNESCO, supra note 320, Annex III at
ii.
n328 UNESCO, supra note 320, at 30.
n329 Lecture by Karel Vasak, Tenth Study Session of the
International Institute of Human Rights (July 1979), as quoted in Marks,
supra note 326, at 441.
n330 Id.
n331 Study on the New International Economic Order and the
Promotion of Human Rights, U.N. Doc. E/CN.4/Sub.2/477 at 15 (1981); Lecture by
Karel Vasak, supra note 329.
n332 See,
e.g., 2 COUNCIL ON ENVIRONMENTAL QUALITY & U.S. DEP'T OF STATE, THE
GLOBAL 2000 REPORT TO THE PRESIDENT (n.d.).
n333
Kirkpatrick, supra note 326, at 2.
n334 UNESCO,
supra note 320, Annex IV, at ii.
n335
Declaration of Teheran, supra note 56, para. 13.
n336 See G.A. Res. 32/130, 32 U.N. GAOR Supp. (No. 45) at
150-51, U.N. Doc. A/32/45 (1977).
n337 Id. at
151. For an excellent comment on these provisions, see Donnelly, Recent
Trends in UN Human Rights Activity: Description and Polemic, 35 INT'L ORG.
633, 643-51 (1981).
