188 Watt to Burton

MemorandumLONDON, 22 December 1948,

UNITED NATIONS ASSEMBLY, PARIS, 1948 : COMMITTEE THREE 1. I enclose herewith draft sections of the report of the Australian delegation to the United Nations Assembly dealing with certain subjects which I handled personally, namely - (a) Declaration of Human Rights (b) Freedom of Information (c) Relief for Palestinian Refugees (d) Report of the Executive Board of the International Children's Emergency Fund (e) United Nations Appeal for Children.

Committee Three also completed two or three other minor items on its agenda and the draft report on these items is being prepared by Mr. Jockel.[1]

2. I have reported at some length upon the Declaration of Human Rights, partly because of its own importance and partly because it occupied by far the greater proportion of the time of the Committee. I realise that this report may have to be cut down if it is to be included in a Parliamentary paper covering the whole report of the Australian delegation, but I thought it better to draft it in some detail. In addition, however, I feel that I should make certain confidential comments on the tactics pursued by the Australian delegation when this subject was before Committee Three, and also on the need for the closest and most careful consideration by all relevant departments in Canberra of the problems which will arise in the near future when the Commission on Human Rights considers the questions of the Covenant on Human Rights and measures of implementation.

3. The Australian delegation in Committee Three had to give considerable through to the best method of handling the various problems which arose during the discussion of the Declaration. In its preamble the Declaration is stated to be 'a common standard of achievement for all peoples and all nations'. As such, any such Declaration naturally goes beyond the present state of domestic legislation in all countries. It was inevitable, therefore, that the Assembly approved, in this Declaration of Human Rights, a number of principles which are not yet enshrined in national legislation in all countries. Occasional attempts were made by various delegations, including the Australian delegation, to bring the Declaration in certain respects into line with existing national legislation. This, however, had to be done with the utmost care in order to avoid publicising and drawing severe criticism upon national legislation which Committee Three would have regarded as not sufficiently liberal or advanced.

4. Thus, at the beginning of the proceedings, the South African representative made the tactical mistake of criticising the draft Declaration which had been sent to the Assembly by the Commission on Human Rights as far too wide and, for this reason, as unacceptable. This attitude immediately drew upon the South African delegation the severest of criticism. It advertised the special limitations upon human rights which exist in South Africa. In addition, the South African delegation was quite unsuccessful in its attempt to induce the Committee to limit the range of human rights and fundamental freedoms which have been included in the Declaration. In the event, the South African delegation had to refrain from further active participation in the work of the Committee and had no real effect upon the Committee's subsequent proceedings.

5. In these circumstances, the Australian delegation pursued an entirely different kind of tactics. We examined every article in the Declaration carefully, and also all proposed amendments, with a view to ascertaining whether the principles enunciated conflicted with important Australian legislation. We then did our utmost, but by indirect rather than direct means, to secure adoption of a text more in conformity with Australian legislation. In doing this, we frequently refrained from elaborating the particular problems of Australia and based our arguments as far as possible upon principles which were either acceptable to the United Nations as a whole, or to an important section of United Nations opinion.

6. In a few cases were successful in securing specific changes in the Commission text. Thus, the Commission draft proclaimed the right of everyone 'to seek and be granted' in other countries asylum from persecution. Having in mind the need to maintain complete discretion with regard to immigration matters, we were able to secure the elimination of the words 'be granted' and the substitution of the word 'enjoy'. Committee Three clearly understood that the new text merely entitles an individual to seek to enter a country and, provided permission to enter is granted by that country, to enjoy asylum in that country thereafter.

7. On numerous other occasions, however, our influence was directed primarily to modifying somewhat extreme proposals put forward by way of amendments, so as to reduce, it not always to eliminate complications which might arise in Australia if it were claimed that the principles of the Declaration should be put into immediate practical effect. Thus, Latin American countries were determined to include in the Declaration a prohibition of punishment of individuals by way of 'exile'. Bearing in mind the provisions of Australian immigration law, which provides that immigrants who commit certain crimes within a prescribed period after entering Australia shall be deported, we managed to defeat the attempt to insert in the Declaration a complete and absolute prohibition of 'exile'. As modified, the Latin American amendment which eventually secured the acceptance of Committee Three provides merely that no one shall be subjected to 'arbitrary exile'. If we had attempted flatly to oppose inclusion of this principle, we would have been unsuccessful. On the other hand, the Australian delegation felt that it could well be claimed that deportation made under known laws fairly administered should not justly be classified as 'arbitrary exile'.

8. A close study of the Declaration in any country will, of course, make it clear that domestic legislation does not correspond precisely with the Declaration itself. It is inevitable, therefore, that private individuals or groups of people will quote the Declaration from time to time, claim that domestic legislation lags behind the Declaration, and bring pressure to bear upon governments to modify domestic legislation in order to make to conform with the Declaration. All countries will be in this position, and most countries in a far worse position than Australia in this regard. The point I wish to make is that any direct attempt by an individual country to limit the scope of the Declaration of Human Rights so that it conformed precisely to domestic legislation in that country would have been brushed aside in Committee Three.

9. I suggest, however, that a close study should be made in Canberra of the terms of the Declaration in order to have immediately available exact information as to the extent to which the Declaration goes beyond existing Australian legislation. Such a study is all the more urgent because the Australian representative on the Human Rights Commission will have to consider at an early date how far restrictions protecting Australian law should be written into the Covenant of Human Rights. This will be an extremely difficult task and I cannot overemphasise the importance of work being undertaken immediately in Canberra so that the Australian representative on the Human Rights Commission can be given, at the earliest possible date and before the next session of the Commission, the most precise instructions.

10. During the discussions in Paris, it was always possible to fall back, in the last resort, upon the view that the Declaration of Human Rights was not a legally binding instrument, and any government which does not desire to conform immediately to the Declaration is perfectly entitled to refrain from so doing. This attitude, however, cannot be adopted regarding the Covenant of Human Rights. Once the principles are accepted by the Commission on Human Rights and are embodied in the draft Covenant, it will be extremely difficult, if not impossible, to secure the exclusion of those principles. Unless the most detailed and clear instructions are given to the Australian representative, therefore, Australia may well find itself in the position at some stage, either of drawing substantial public attention to its own particular limitations and thus inviting strong international criticism, or else of having to refrain from acceptance of the Covenant of Human Rights. This latter possibility would be extremely awkward in view of the fact that Australia has consistently stated that measures of implementation are essential to any effective Bill of Rights.

[1] G.A. Jockel, Third Secretary, Australian Permanent Mission to the UN; adviser to Australian delegation to Third Session of UN General Assembly.

[AA : A1838, 856/13/7, II]