189 Report by Hood

Extract, [NEW YORK], 13 July 1949

REPORT OF THE AUSTRALIAN REPRESENTATIVE TO THE FIFTH SESSION OF THE COMMISSION ON HUMAN RIGHTS [matter omitted]

Item 5: Draft International Covenant on Human Rights and Measures of Implementation 4. This was the main work of the Commission at its Fifth Session and occupied practically the whole of the six weeks. At the outset of the discussion on the Covenant the Commission decided that it would complete the Covenant and Measures of Implementation at its fifth session, and that the Secretary-General should then transmit these drafts to member governments for their comments before 1st January, 1950. In the light of these comments the Commission would revise the Covenant and Measures of Implementation at the Sixth Session in March, 1950, so that they could be presented to the Economic and Social Council in time to enable the Council to submit them to the General Assembly at the Regular Session of 1950.

5. This decision was not fully adhered to in relation to the draft Measures of Implementation or to the new articles proposed by the Governments of Australia, France, Denmark, the U.S.S.R., and the United Kingdom as it proved impracticable in the time at the Commission's disposal to do more than complete the revision of the articles set out in Document E/800, which were prepared by the Commission's Drafting Committee in 1948. The Commission's decisions regarding Implementation and the new articles are referred to on pages 18 and 19 below.

[matter omitted]

69. The Commission did not have time to devote proper attention to the new articles at this stage. Progress on the Draft Covenant as contained in E/800 was so slow that only two days were left at the end for consideration of the new articles. In these circumstances, as we reported to Canberra, we felt that it would be unwise to press these matters to a vote, especially as the majority of the Commission was clearly against their inclusion at this stage without further study. We were opposed in this by the U.S.S.R. who appeared anxious to force all the new articles to a vote, even if only half an hour or so could be devoted to the discussion of each. It became apparent in fact that the purpose of the representative of the Soviet Union was not so much to secure the acceptance of economic and social rights in the Covenant, as to force members of the Commission to vote against them, with the obvious consequential propaganda advantages of such a vote.

70. The line we followed was that there were 15 new articles, many of them highly controversial, and that the Commission must send to governments a document which had some meaning. In these circumstances we supported the conclusion of Parts 1 and 3 of the Draft Covenant contained in Document E/800 before proceeding to new articles. This meant, of course, that the new articles could not be properly considered at this session, but that they should be forwarded together with whatever discussion was possible in the Commission to governments for their comments. In any case we felt that they should not be voted upon at this stage.

[matter omitted]

Measures of Implementation 75. The Commission had before it proposals by the United States and the United Kingdom (E/CN.4/274), India (E/CN.4/276), Guatemala (E/CN.4/293), France (E/CN.4/82/Add.10) and Australia (E/CN.4/AC1/27).

76. Consideration of Measures of Implementation was no more satisfactory than that concerning new articles, although considerably more time was spent thereon and some of the work of the Commission may eventually prove to have been quite useful. It will be recalled that early in the Session the Commission decided to complete the Draft Measures of Implementation at this stage, but it was soon discovered, after the Commission had been in session for about a month, that unless work were concentrated on the Covenant itself, the Commission might fall between two stools and produce nothing definitive at all. For some time the Commission followed the procedure of considering the Covenant and the Draft Measures of Implementation on alternate days, but this was finally dropped. The statement made by the representative of Australia in connection with implementation is attached as Annex 'C'.

[matter omitted]

Annex C STATEMENT ON IMPLEMENTATION MADE BY AUSTRALIAN REPRESENTATIVE The interest of the Australian Government in the question of the implementation of human rights is well-known. It has not been confined to the Bill of Human Rights, but was raised also in relation to the peace treaties with the German satellite powers at the Paris Conference of 1946. My main purpose at this stage is to suggest the means whereby the Commission could best achieve its objectives at this Session, while touching only briefly on the proposals in the field of implementation that have been put forward.

Implementation of human rights has two aspects, domestic and international. There are real points of domestic implementation to consider as, for instance, the draft Article 24 of the Convention dealing with federal states, and, more important, the text of Article 2, which in its present form enables a state to ratify before it has taken the steps necessary to ensure application. This problem has been discussed by the Commission's working group on implementation, which came to the conclusion that where ratification occurs before domestic implementation there should be a clear understanding that implementation would ensue within the shortest possible time. A serious problem in connection with the present text of Article 2 is that there is no time limit and that a state can ratify a convention and take indefinite time to apply it.

So far as domestic implementation is concerned, however, we would like to suggest that the Commission would be well-advised to consider this in the general drafting of the Covenant as a whole, that is when we reach Article 24 in the normal course of the work we will resume tomorrow, and when we return to Articles 1 to 4 later. In other words, we suggest that the days set aside for work on implementation should be devoted to international implementation and not to the question of the domestic application of the Convention.

Regarding international measures of implementation the Australian position, as I have said, was first set out in connection with the Paris peace treaties. It is largely embodied in the report of the working group on implementation, and we have submitted a draft statute for an international court together with machinery articles to go in the body of the Covenant in Document E/CN.4/AC.1/27.

The Australian proposals for an International Court of Human Rights have been put forward because we favour a continuous, effective, and just system of international supervision. In English law the remedy is just as important as the right, for without the remedy there is no right. Our basic thesis is that individuals and associations as well as states must have access to and full legal standing before some kind of international tribunal charged with the supervision and enforcement of the covenant. In our view either a full and effective observance of human rights is sought, or it is not. If we do seek it, then the consequences must be admitted and the idea of compulsory judicial decisions accepted. The present International Court is unsuitable because of the limitations placed on it as regard individuals and associations. There is also the question of technical qualifications, on which the Working Group on page 50 of E/600 says that 'there can be no doubt that disputes concerning human rights would be appraised more authoritatively by judges chosen for this purpose'. However, the real crux of the matter is that a court is the only way of getting internationally enforceable protection of rights. Decisions of international courts in the past have been observed with very few exceptions, and any other system could only produce recommendations.

The main argument against the Court, and indeed against any effective implementation, appears to have been that it might involve an interference in the internal affairs of a state or undermine the sovereignty and independence of particular states. This, and the argument that disagreements between individuals and their governments might assume an international character, were brought forward by the representative of the Soviet Union last year in the commission in document E/CN.4/154. If we believe in the idea of international bills of human rights we must necessarily accept these limitations. Professor Cassin pointed out at the same meeting of the Commission that the French Constitution declares that his country, on the basis of reciprocity, is ready to accept limitations of sovereignty necessary to the organisation and defence of peace. In the Charter we have already accepted the principles governing our actions in these fields, and there should be no objection to a system which seeks to keep us up to our obligations.

In addition to the Australian proposal for an international court, and related suggestions for the enlargement of the present International Court, the Commission also has before it French proposals for an eleven-member international commission, and a China-United States proposal for a committee to make recommendations where direct negotiations between states fail. This latter proposal, which is set out in E/CN.4/145, appears to us to have the grave defect, which an Indian amendment seeks to overcome, of confining international action to manifest violations taken up by another contracting state. It makes international action a matter of diplomatic intervention. However, in a sense, the General Assembly has already made its views clear on the principle of this proposal in the Convention on the International Transmission of News. The United States on this matter wanted all disputes to be referred to a negotiating committee consisting of the parties to the dispute and certain other members selected by the Secretary-General. The Assembly rejected this proposal because it gave too much free play to the bargaining and negotiating strength of the big powers. Instead the Assembly provided for jurisdiction by the International Court.

Should the Commission decide that the time is not yet ripe for the setting up of an international court, the Australian Government would wholeheartedly support the proposals put forward by Professor Cassin last year, providing for a review of the extent to which the laws of the contracting states are consistent with the Covenant, the examination, if necessary by investigation, of the complaints of states, associations and individuals, and the proposal, where appropriate, of recommendations to the General Assembly. While this would not go as far as we would wish in the protection of human rights, it may well be as far as we can go at the present time, and would clearly make a very important contribution to what we are striving to do.

[matter omitted]

For reasons which I have set out, the Australian Government is convinced that an International Court of Human Rights is the only really effective means of implementation, and we have been gratified at the sympathetic support we have had from Professor Cassin in this matter. We have also noted with satisfaction decisions taken at Bogota on the setting up of such a body for the American States. Should, however, the Commission feel otherwise we would do what we can to ensure the success of the method adopted, reserving the right to return to the court proposals at a later stage in the drafting of the International Bill of Rights, or after a period of time if experience should show that other methods were unsuccessful. In this event we would suggest that we include an article now in the Covenant which would enable the court to function if and when it is established, and that the question of the court be referred to the International Law Commission for study, so that we would have their views if the Commission decided at any time that action along those lines should be taken.[1]

[1] At the sixth session of the Commission in 1950 Australia proposed that the question of an international court be referred to the International Law Commission for study. The resolution was rejected by eight to five with two abstentions.

[AA : A432, 1947/725, III]