180 Report by Heyward
REPORT OF AUSTRALIAN ALTERNATE ON HUMAN RIGHTS DRAFTING COMMITTEE, SECOND SESSION MAY 3-21, 1948
The Drafting Committee discussed the Covenant first (against Soviet objections), got somewhat more than half way through the Declaration, and had to put implementation off to the full Commission. However, it became apparent that support for the Court of Human Rights was increasing, since ten governments have now indicated that they favour enforcement, several of them through the Court. Also, the Ninth Inter-American Conference at Bogota, which adopted a declaration on the rights and duties of man, adopted the following Resolution 31:
'... RECOMMENDS that the Inter-American Juridical Committee elaborate a draft statute for the creation and functioning of an Inter-American Court established to guarantee the rights of man ...'
Just as at Bogota, the general opinion at Lake Success seems to be that it is too early to set up a court at once. M. Cassin, who says that opinion in favour of the court is growing in France, asks that we support now the French proposals to establish the right to petition from individuals, and a commission of conciliation to deal with them, on the understanding that at a later stage we should try to add a Court of Human Rights to the structure. This seems to be a sensible proposal, and it leaves us free to argue for a Court of Human Rights throughout. U.K. is at present opposed to allowing individuals to petition the United Nations, but may be open to argument.
Economic and Social Rights in the Covenant
Australian proposals to include in the Covenant the political, economic, and social rights stated in the Declaration, were supported only by Chile and the American Federation of labour. The Soviet expressed interest in the desire to include them. The Committee even refused to consider them individually and voted them out en bloc. Arguments used were that there was no time to draft these rights now and they should be left to a later convention. Lebanon believes that these rights can only be secured by comprehensive state control of the economy. While this is disproved by the experience of Scandinavia, the Low Countries and Britain and some British Dominions, it is true that there are some difficulties in formulating these rights in a way that will not cause difficulties for primitive economies where in fact they are not so much needed, e.g., in an economy of farmers and handicraftsmen. This is one reason for British opposition, (there would be difficulties in applying them to the colonies). Another difficulty seen by Britain concerns implementation. She regards our implementation proposals as fundamentally inconsistent with these since a court making determinations about individual civil rights would not be an appropriate organ to deal with the obligations of states regarding economic and social conditions. A means of using the specialized agencies for this task has yet to be worked out. The U.S.A. thinks it would be impossible for her to adhere to a covenant pertaining to economic and social rights. The American Bar Association, which has recently been discussing the Geneva drafts, has objected to their inclusion even in the Declaration, which it regards as an encouragement to state intervention in economic life.
The Drafting Committee made slow progress and by no means finished drafting such matters as it discussed. It is inevitable that the whole Bill of Human Rights will not be ready for presentation at the 1948 Assembly. A great deal of verbal polishing is still required. Also, comments from Governments on the Geneva draft have been asked for by July 3 by which time the Commission will have finished its session. The alternatives seem to be to push on with the Declaration only for the 1948 Assembly, or to postpone the whole to a special conference in 1949 or to the 1949 Assembly. (The great Declarations of the past have usually required several months to draft and more time must be allowed for international drafting.)
The Drafting Committee decided to discuss the Covenant first. Previously the Declaration had always taken up most time. The Committee did its best work polishing up the Covenant. The Australian brief would indicate that the Australian Departments have been inclined so far to give more attention to the Declaration than to the Covenant and a thorough examination of the Covenant is now obviously required, especially as the U.K. will argue that states should not be allowed to adhere with reservations. While the U.S. sees no incongruity in arguing that the Covenant should be altered to accord with U.S. laws, the U.K. recognizes that it will have to alter its law in certain respects, France is introducing compensation for arbitrary arrest, and countries like Australia will have to do likewise except that our obligations are greatly lightened by being a federal state.
Force of Declaration
The Declaration will have the force of an Assembly resolution. The draft U.S. preamble includes 'the General Assembly recommends the following declaration as a standard of achievement for its members in their promotion of human rights and fundamental freedoms.'
The French preamble says that the Declaration should continually recall to men their rights and duties so that Members may continually apply its principles. The Declaration will thus have moral force for all U.N. members, especially for those who gave it their affirmative vote in the Assembly. Many more countries may be expected to do this than to sign the Covenant, hence there are advantages in having sufficient detail in the Declaration to give some content to its obligations.
We also want the Declaration to educate and strengthen public opinion in countries where human rights have not yet been fully developed, or where owing to political changes they come under attack. By this means governments would be induced to give fuller recognition to human rights. For this purpose also the details should be sufficient to give people who are not lawyers an adequate idea of the rights concerned.
Also we may expect the Declaration to be taught in schools and for this purpose an amount of illustrative detail is required.
These arguments point to a Declaration of about the length of the Geneva draft. Against them it has been argued that the Declaration needs to be short in order to be striking. Magna Carta and the American Bill of Rights have been used as illustrations - the latter consists of 9 articles and runs to one printed page, but it includes some only of the political and civil rights in the declaration. Moreover, the above declarations were directed to specific or well-known abuses in individual countries. A declaration that is to have meaning all over the world must inevitably contain more explanation.
Australian Policy - So far we have supported the idea that there should be a declaration of about the length of the Geneva document, but we have also said that the Chinese declaration should go forward for consideration. Should we be successful in getting the economic and social rights into the covenant we could then support the shorter declaration. Otherwise it would appear inconsistent to do so.
Relation to Covenant - Members of the Drafting Committee are not yet completely clear about the relation of the two documents in practice. It is agreed that there is no need to itemise limitations in the Declaration; also that it should have common sense rather than legal drafting. The Australian doctrine that it should be declaratory rather than mandatory has been accepted by the U.S., but the U.S. proposal to phrase many articles in the form of 'everyone is entitled to freedom from' was not viewed with favour by the English-speaking people and M. Cassin said the French equivalent was 'inconceivable.' Hence there are still some articles where this principle has not been given effect to satisfactorily.
It is also agreed that the Declaration may contain articles which cannot be applied immediately or which cannot be drafted in terms of strict legal content, e.g., political, social, economic articles.
In general any expansion of Declaration articles is illustrative rather than exhaustive. The U.K. expresses some private fears that we were spelling out rights whilst leaving all the limitations to be implied. I do not think this is true. (See articles on freedom from arbitrary arrest and fair trial.)
It seems inevitable that the articles should be of very unequal length. This is probably not a serious weakness.
The French seem to have made many drafting improvements on the Declaration without altering the fundamental ideas. The committee recommended the French draft as a basis for the political, economic and social articles, and would, I think, have been wise to follow it more with regard to the others. There was some tendency to go into as much length as the Covenant and say the same thing in different words.
[AA : A1838, 856/13/7, I]