183 Loomes to Burton
One of the items on the agenda of the seventh session of the Economic and Social Council is the consideration of the draft Covenant and Declaration on Human Rights.
2. This matter was considered at the last session of the Human Rights Commission, and I attach copies of the draft International Declaration on Human Rights and of the draft Covenant on Human Rights as they were approved by the Commission for submission to the Council.
3. The most important questions arising out of the discussions in the Commission (including the drafting committee) were the following:-
(1) Timetable:The question arises whether it will be possible to complete the whole matter (including the preparation of the declaration and the covenant with the measures required for its implementation) in time for the 1948 Assembly, or whether it would be preferable to defer the matter until 1949. The differences of opinion on the contents of the documents, some of which are set out below, may make deferment desirable.
(2) Covenant provisions on economic and social rights:The declaration is so drawn as to include many economic and social rights (for example, education limitation on working hours, social security [rights in literary and artistic works]), but these rights are not included in the Covenant, which should be the implementation of the declaration. The Australian representative on the Commission pointed out this anomaly, but the Commission refused to extend the Covenant to cover these rights on the following grounds, inter alia:-
(i) it would delay the covenant too long
(ii) fewer states would accept it
(iii) these provisions could not be implemented by the same machinery as the civil rights which now comprise the covenant
(iv) it would mean too much state control.
These have been examined, and seem groundless, except the political objections in (i) and (ii), which may conceivably make inclusion of the additional provisions undesirable at this stage. An alternative would be to restrict the present covenant to civil rights, and to propose an additional covenant to cover the other rights. Another alternative would be to leave the individual questions to the specialised agencies or to special conferences. The last might perhaps be the most feasible, since then the various questions could be fully dealt with in special conventions, e.g. I.L.O. conventions, U.N.E.S.C.O. conventions on educational standards [and copyright].
(3) Limitations on the exercise of human rights:The rights set out in the draft covenant will necessarily be subject to certain exceptions (for example, death by order of a competent court will be an exception to the general human right to live). The United Kingdom, supported by Australia, has suggested that exceptions should be stated to each right, but the United States consider that some general limitation clause should be drafted. Apart from the difficulty of drafting such a clause, it is thought that by so doing the whole purpose of the covenant could be defeated if all human rights could be suspended on the happening of some event, for instance, the existence of a state of war, which would probably be justification for the suspension of some rights, but certainly not of them all.
(4) The Declaration as Fundamental Law:In Geneva, the Australian representatives suggested that the Declaration should be part of the fundamental law of states accepting it. This has been opposed by the United States on the ground that fundamental guarantees are already included in the United States constitution, and the different wording and greater detail of the Declaration would tend to create confusion. In Australia, the only fundamental law is the Constitution, and, in order to incorporate the principles of the declaration, the lengthy procedure under Section 128, involving a referendum, would be required. In the circumstances, it is felt that we should not continue to press this point.
(5) Placing of obligations on the United Nations: Some doubt has been expressed by some delegates to the effectiveness of providing in the declaration for placing obligations on the United Nations (e.g. Article 11, where the United Nations is to secure asylum from persecution, and Article 15, where the United Nations is to have a duty to prevent statelessness). It was felt that no fresh obligation could be placed on the United Nations except by altering the Charter. It is considered however that, if the Declaration is embodied in a resolution of the General Assembly, which is the present intention, the United Nations may itself assume any burden or duty which it provides. Such a duty would not be immutable, but a new resolution of the General Assembly would of course be required to rescind or amend it. It is therefore considered that there is no objection to support being given to these provisions.
(6) Length of the Declaration:It will be seen that the draft Declaration is a somewhat lengthy document, and it will be remembered that, in submitting general comments, we suggested that a short declaration could be drawn to embrace all the most important rights along the lines of the United States draft, of 10 articles. It was felt that a short declaration would be of greater popular appeal and persuasion. This was not, however, accepted, and it will be a matter for consideration whether we will re-introduce the proposal, in which we would probably have the support of the United States and China, at the next session of the Economic and Social Council. It is considered that this should be done, since the present document is far too lengthy for the purpose for which it is intended.
4. I have discussed these matters with Mr. Whitlam, Commonwealth Crown Solicitor, who concurs in the substance of the recommendations.
5. The matter is submitted for your consideration. It is thought that the Minister's attention might be drawn to the matter with a view to obtaining a definition of the policy to be adopted.
[AA : A1838, 856/13/7, I]