Abstract
Following the conclusion of the two great wars in this century, attempts were made to protect human rights and fundamental freedoms at the global level. The League of Nations and the present United Nations achieved some success in limited areas.1 But, tragically, in spite of some positive results, particularly by the specialized agencies of the UN, such as the International Labour Organization,2 the general observation cannot be escaped that the desired objectives originally set forth by its founders in 1945 have not become a reality. Indeed, this idealistic aim, which was to protect human beings at the world-wide level, could not be accomplished either by the League of Nations or the United Nations; and the conclusion cannot be escaped that the desired goal has still to be achieved at the world-wide level. It appears that concrete accomplishments will not be obtained in the relatively near future because of the East-West split, the rise of new nations rejecting the traditional corpus of international law, the lack of a democratic tradition in totalitarian systems, the competition between “have” and “have not” nations, and the widening gap between the industrialized and under-developed States.3
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Briefly, some of the significant accomplishments of the United Nations in its efforts to protect the individual must be noted. As McDougal so ably points out: It is only from a perspective of centuries that the United Nations program for “human rights” can be accurately observed or rationally appraised. This program, too often thought to be at the periphery of the purposes of the United Nations, represents in fact the main core of rational objectives not only of the United Nations but of all democratic government. It represents the converging and integration on a global scale of many movements, movements hitherto restricted in areal diffusion but centuries old and rooted deep in universal human nature and civilized culture. It is heir to all the great historic democratic movements — for constitutionalism, freedom, equality, fraternity, humanitarianism, liberalism, enlightenment, peace, opportunity, and so on. McDougal & Leighton, “The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action,” 59 Yale L.J. 60 (1949). (Footnotes omitted). Likewise, McDougal continues to support the efforts of the World Body to protect human rights. See McDougal & Bebr, “Human Rights in the United Nations,” 58 Am. J. Int’l L. 603 (1964). See Ch. IV infra. A much stronger position is taken by Green who holds: The many different activities of the United Nations in the field of human rights over the past ten years have constituted a pioneer effort in the history of international relations. … In the past, the issue has been … the rights of the individual under the state. For the last ten years, however, the issue has concerned the extent to which an international organization could and should assume responsibility for promoting and encouraging respect for the rights of the individual. Green, The United Nations and Human Rights 3 (1956).
See the discussion in Ch. IV infra. complishments will not be obtained in the relatively near future because of the East-West split, the rise of new nations rejecting the traditional corpus of international law, the lack of a democratic tradition in totalitarian systems, the competition between “have” and “have not” nations, and the widening gap between the industrialized and under-developed States.3
The inability of the United Nations to protect human rights when violations have occurred is well recognized. The United Nations is powerless to take effective action because such authority has been withheld by the major States. Cohen, “Human Rights Under the United Nations Charter,” 14 Law & Contemp. Prob. 413 (1949); Cohen, “Supression of Human Rights in Hungary and Bulgaria: Statement to the General Assembly’s Political Committee,” 35 A.B.A.J. 514 (1949). Similarly the United Nations can only take action if a threat to the peace is found to exist; it cannot intervene in cases of discrimination. Sørensen, “The Quest for Equality,” Inf’l Conc. No. 507, at 291 (1956).
Sohn, “The Function of International Arbitration Today,” 108 (I) Recueil des Cours I (1963) and Sohn, “The Role of International Institutions as Conflict-Adjusting Agencies,” Memorandum, 1961 Conference on World Tensions, especially note Ch. III, “Settlement of Conflicts Through Regional Arrangements,” at 52-77.
Statute Int’l Court of Justice, 1945, annexed to the U.N. Charter. See the proposals for the revitalizing of the ICJ in Ch. VII infra.
See the examination of supranational institutions Ch. V and VI infra.
Ganji, International Protection of Human Rights (1962). He states: Regional agreements seem to be the most practical and effective way to achieve more comprehensive instruments at the present time. This is because no practical comprehensive Bill of Human Rights could be established.… However, the conclusion of such regional agreements is no substitute for world-wide international agreements of the kind we have proposed. Id., at 278.
See the proposal for a regional panel from the ICJ that would resolve disputes between the United States, Canada, and the Latin American nations. Int’l & Comp. L. Sec, ABA, Proceedings 103-04 (1962). See especially,-, Human Rights in the American States (1960). The specialized scope of the present study precludes an extensive discussion of the influence of the European Institutions in other portions of the world. However, see the excellent study by Vasak, “The European Convention of Human Rights Beyond the Frontiers of Europe,” 12 Int’l & Comp. L.Q. 1206 (1963). See Ch. VII, infra, pp. 189, note 6.
King & Gormley, “Toward International Human Rights,” 9 Wayne L. Rev. 294 (1963). See Lawson, International Regional Organizations: Constitutional Foundations (1962). See, e.g., Treaty Establishing the Benelux Economic Union (1958); Pact of the League of Arab States (1945); Colombo Plan for Cooperative Economic Development in South and Southeast Asia (1950); International Agreement for the Establishment of the Commission for Technical Cooperation in Africa (1954); Charter of the Union of African States and Malagasy (1961); African Charter of Casablanca (1961); Charter of the Organization of American States (1948); Treaty Establishing a Free Trade Area and Instituting the Latin American Free Trade Association (1960); Charter of the Organization of Central American States (1951); Agreement and Statute for the Establishment of the Caribbean Organization (1960) and the new Treaty of the Malaysian Common Market (1963).
“Economic Integration in Latin America,” 17 Record of N. Y. C. B. A. 5 (Supp. June 1962). See the discussion of the Central American program of economic integration, id., at 13. See the Charter of the Organization of Central American States (ODECA), signed at Panama City on Dec. 12, 1962. 2 Int’l Legal Materials 235 (1963).
Murdock & Gobbi, “Inter-American Judicial Committee,” 9 Am. J. Comp. L. 596 (1960).
Charter of the Organization of African Unity, 58 Am. J. Int’l L. 873 (1964). See Vasak, supra, note 8 at 1230.
Foda, The Proposed Arab Court of Justice (1957).
See CCH Common Market Rep. ¶ 9090, at 7873.
The creation of such regional courts within the existing Common Market structure is permitted by Article 233 of the EEC Treaty, which states: “The provisions of this Treaty shall not be an obstacle to the existence or completion of regional unions between Belgium and Luxembourg, and between Belgium, Luxembourg and the Netherlands, in so far as the objectives of these regional unions are not achieved by application of this Treaty.”
Holborn, “American Foreign Policy and European Integration,” 6 World Politics (1953). Furthermore, there is considerable authority to the effect that it would be unconstitutional tor the United States to join the Common Market. Hay, Colley & Moorhead, “Problems of United States Participation in the European Common Market,” 23 U. Pitt. L. Rev. 595 (1962).
Likewise, American scholars feel that the U.S. Constitution bars our acceptance of international human rights conventions, including the United Nations covenants. Holman, “International Proposals Affecting So-called Human Rights,” 14 Law & Contemp. Prob. 479 (1949). To the same effect see Hyman, “Constitutional Aspects of the Covenant,” 14 Law & Contemp. Prob. 451 (1949), and Fleming, “Danger to America: The Draft Covenant on Human Rights,” 37 A.B.A.J. 739 (1951). Aside from constitutional limitations, the U.S. has a long record of opposing international efforts. Ransom presents the position of the United States Government as follows: Our government has opposed giving to “individuals, associations or groups” the right to complain to the United Nations that individual rights have been violated, in their own country or any other. Our government has opposed the creation of a permanent committee, to receive, consider and act on charges or complaints of claimed violations of the Covenant on Human Rights, even in effect reviewing such matters after they have been decided by our own Supreme Court, even overriding that court’s decision under our Constitution. Ransom, “International Legislation and the American System,” 22 Tul. L. Rev. 545, 555-56 (1948).
See CCH Common Market Rep. ¶ 9076, at 7827. Bergh, “The New Convention of Association with African States,” 1 Common Market L. Rev. 156 (1963).
Ch. IV infra. In 1965 a single executive was established by the EEC.
Ch. II infra, especially the statement by Brown, p. 23, note 17 infra.
Ténékidès, “The Influence of the Internal Regime upon the Structure of International Organizations,” 110 (III) Recueil des Cours (1963).
The most important aspect of the European Convention of Human Rights, in the words of the Preamble, is the existence of “a common heritage of political traditions, ideals, freedoms and the rule of law” within the Member States of the Council of Europe. … [T]he rights and freedoms provided for in the Convention consist of the lowest common denominator of those guaranteed in practically each of these countries. Manouchehr, International Protection of Human Rights 271 (1962).
Ténékidès, supra, note 21. Robertson, “Legal Problems of European Integration,” 91 (I) Recueil des Cours 104 (1957); Robertson, The Law of International Institutions in Europe (1961); Stein & Nicholson, American Enterprise in the European Common Market; A Legal Profile (1960) [hereinafter cited as American Enterprise]; Donner, “The Court of Justice of the European Communities,” Int’l & Comp. L.Q. 66 (Supp. I, 1961); Reuter, “The Rule of Law of the European Coal and Steel Community,” 80 Journal du Droit International 5 (1953); and Lawson, International Organizations (1962).
See authorities cited supra, note 23.
Jenks in discussing his “common law of mankind” clearly rejects the idea that only States are subjects of the law. Moreover, he maintains that international institutions are definitely law making bodies. Jenks, The Proper Law of International Organizations 256-61 (1962). See his earlier work “The Place of Law in an International Organization,” 36 Brit. Yb. Int’l L. 321 (1960). A similar position is taken by Harley, “The Growing Interdependence Between International Law and International Organization” in The Achievement of Peace — Hope or Illusion? (1954). His thesis is that there exists “evidences of the new growing, interrelationship and interdependence between international law and international organization.” Id., at 39. Furthermore, “there is a remarkably interesting correlation between international law and international organization.” Id., at 40. Jenks, “Co-Ordination: A New Problem of International Organization,” 77 (II) Recueil des Cours 157 (1950).
See Stein, “The European Coal and Steel Community: The Beginning of Its Judicial Process,” 55 Colum. L. Rev. 985 (1955); Steiger, “An Evaluation of Legal Development on a Regional Basis: The Search for European Unity,” 22 Ohio St. L. J. 495 (1961); Kohnstamm, “The European Cool and Steel Community,” 90 (II) Recueil des Cours 1 (1956); Buergenthal, “Appeals for Annulment by Enterprises in the European Coal and Steel Community,” 10 Am. J. Comp. L. 227 (1961); Bebr, “The European Coal and Steel Community: A Political and Legal Innovation,” 63 Yale L.J. 1 (1953); Bebr, “The Development of the Community Law by the Court of the European Coal and Steel Community,” 42 Minn. L. Rev. 845 (1958); Bebr, “Protection of Private Interests under the European Coal and Steel Community,” 42 Va. L. Rev. 879 (1956); Kautzor-Schroeder, “Public Tort Liability Under the Treaty Constituting the European Coal and Steel Community Compared with the Federal Tort Claims Act,” 4 Vill. L. Rev. 198 (1958); Campbell & Thompson, Common Market Law (1962); European Regional Communities (Shimm ed. 1962); Cohn, “Aspects of the Procedure Before the Court of Justice of the European Communities,” 1 Sol. 309 (1962); Donner, “The Court of Justice of the European Communities,” 17 Record of N.Y.C.B.A. 232 (1962); de Jong Edz, “The Historical Development of the Idea of European Integration,” 6 Higher Education & Research in the Netherlands 3 (1962).
Treaty Establishing the European Coal and Steel Community, 1 European Yb. 353 (1955); Treaty Establishing the European Atomic Energy Community, 4 European Yb. 455 (1958); Treaty Establishing the European Economic Community, 4 European Yb. 413 (1958); and Statute of the Council of Europe (1949), as amended, 1951, 1953, 1956, 1961.
European Convention of Human Rights, European Commission of Human Rights: Documents and Decisions-1955,1956,1957 (1959). Signed in Rome, Nov. 4, 1950. Ch. V infra, p. 70, note 2. [Hereinafter, the Yearbooks of the European Convention of Human Rights, vols. 1-4, will be cited as Yb. Human Rights.]
See Ch. V infra.
Spofford, “International Arbitration: Certain Contemporary Developments,” Recueil des Cours (1964) and van Panhuys, “Relations and Interactions Between International and National Scenes of Law,” Recueil des Cours (1964). See Ch. VII, infra, p. 185, note 1.
Cb. II infra.
Svarlien very clearly recognizes the impact of natural law theories upon the recognition of individuals as entitled to dignity. He states: The idea that the individual is endowed with certain fundamental and inalienable rights is, indeed, much older than the modern state. It was familiar to the people of antiquity and played an important part not only in the theological system of the Middle Ages, but in modern political theory as well. In ancient Greek philosophy, natural law was invoked in a brave and precocious attempt to find harmony in conflict and reason in chaos. “What each thing is when fully developed,” wrote Aristotle, “we call its nature, whether we are speaking of a man, a horse, or a family.” [From his Politics, reprinted in Loomis, Aristotle on Man in the Universe 251 (1943).] Thus, the classical conception of natural law was the harmony found in the whole of nature at the point where each of its parts had reached the highest degree of development. … The significant impact of Greek thought upon the Roman world is clearly reflected in the following excerpt from the famous jurist, Cicero: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal. … It will not lay down one rule at Rome and another at Athens, nor will it be one rule to-day and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” … [N]atural law played a major part in the formulation of the first principles of public international law. But it would seem reasonable that if natural law can be used to affirm and support existing institutions, it can also be employed to undermine and overthrow their existing structures. … [T]he concept of inherent and inalienable human rights has long constituted a substantial part of natural law doctrines. It began in ancient times with the Stoics, and was later infused by the legal philosophy of Rome as well as by the Christian theology of the Middle Ages. In the eighteenth century these precepts were eloquently formulated both in Europe and America as a justification for revolution in the overthrow of despotism. But it was as though the explosive force of these doctrines in the latter days of the “age of reason” consumed at once their earlier vitality. The nineteenth century saw the triumph of positivism, with the result that international legal theory became increasingly preoccupied with the rights and duties of states, while the individual was consigned to the position of a mere “object” of the law of nations. During this period the monistic conception of the Rechtstaat reached new stages of refinement as doctrines of rationalism, which had distinguished the development of international law in the last three hundred years, were gradually obscured by the romantic adulation of the state. But a profound crisis in western culture manifested by wars and revolutions has made our century the most turbulent in the entire history of the human race, and a new and frightful despotism has infested the earth. The rights of individuals, once regarded as sacred and inalienable, are in this age obscured by the shadow of a leviathan state. It is in the face of this clear and present danger to human freedom that new trends are discernible-not only in the writings of publicists but in the positive development of international law and organization as well. Svarlien, “International Law and the Individual,” 4 J. Public L. 138-39, 148 (1955). See also Green, op. cit., supra, p. 1, note 1, at 646.
“International Declaration of Human Rights,” U.N. Gen. Ass. Off. Rec. 3d Sess. (L), Resolution (A/810) at 71 (1948), adopted unanimously by the United Nations General Assembly, December 10, 1948; U.S. Dep’t of State, Pub. No. 3381 (1949).
Berle, “The Peace of Peoples,” 77 (1) Recueil des Cours 1, 7 (1950). Interestingly, Berle, in an “inserted foreword” to his course, stated that he would not alter his position — in spite of the Korean War — because he believed that the “Charter of the United Nations set up rights in international law available to, and for the benefit of, peoples — as well as maintaining the older and more established rights available to states.” Ibid. The leading authority supporting the view that the Charter and the Universal Declaration of Human Rights contain binding legal obligations and not merely moral obligations was Lauterpacht. As late as 1951, he again affirmed the position taken in his classical work International Law and Human Rights (1950). Thus, he stated emphatically, it is an overriding fact that its [U.N. Charter] provisions in the matter of human rights and fundamental freedoms are a source of legal obligations both for the members of the United Nations and for the United Nations as a whole. In the first instance, Members of the United Nations are under a legal — and not merely a moral — obligation to respect human rights and fundamental freedoms as repeatedly reaffirmed in the Charter. No principle of interpretation can justify the treatment of these provisions of the Charter as a verbal and nominal declaration. … The authors of the Charter did not go to the length of agreeing that the United Nations shall ensure fully the respect of human rights and fundamental freedoms, but they did agree that Members of the United Nations shall respect these rights and freedoms. That obligation results not only from the undertaking expressed in Article 56, in which “all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes” the promotion of which is, in conformity with Article 55, a legal duty of the Organization. It is an obligation which follows from the fact that the recognition of human rights and fundamental freedoms is a constant and dominant feature of the Charter. Lauterpacht, “The Charter of the United Nations and Human Rights,” 3 Österreichische Zeitschrift für Öffentliches Recht 19, 20-21 (1950). He follows the above line of reasoning to the extent of holding that the U.N. Charter has made the individual a full subject of international law, a position favored by the writer. Thus: [O]ne of the results of the provisions of the Charter in the matter of human rights and fundamental freedoms is to effect a far-reaching change in the position of the individual in international law. If these provisions of the Charter are part of the law, then they signify the recognition, in an international treaty of wide generality of rights, of the individual as such. They transfer the inalienable and natural rights of the individual from the venerable but controversial orbit of the law of nature to the province of positive law, of international law. They thus mark a significant step towards the recognition of the individual as a subject of the law of nations. Id., at 29.
The writer takes the position that there is considerable value in codification of basic ideals. Procedural Status 35. Lederman, “The Nature and Problems of a Bill of Rights,” 37 Can. B. Rev. 4 (1959), compares “judicial review” in the United States, Britain, and Canada. “[T]he proposed Canadian Bill of Rights is to be an ordinary statute of the federal Parliament, and so would enjoy no special constitutional status. It would not limit the provincial legislatures, nor, indeed, preclude a later repeal by the federal Parliament itself. Nevertheless, a Canadian Bill of Rights may be well worth doing as an ordinary federal statute.” Id., at 11. Lederman discusses the U.N. Declaration of Human Rights at great length to show the value of codified general principles to any legal system. See McWhinney, “The Supreme Court and the Bill of Rights — The Lessons of Comparative Jurisprudence,” 37 id. (1959); Read, “The Judicial Process in Common Law Canada,” id., at 265.
Ch. V infra, p. 77, at note 26 ff.
Ch. IV infra, p.61, at note 64 ff. “The Covenant of Human Rights is designed to form the second part of an International Bill of Rights, of which the first part is the Universal Declaration of Human Rights.” Holcombe, “The Covenant of Human Rights,” 14 Law & Contemp. Prob. 413 (1949).
Aristotle, Rhetoric (Roberts, trans) 1, 12, 1373b (1954). See id. 13-14. Locke, Two Treatises of Government, 2 Works of John Locke (6th ed. 1759).
France and Switzerland have not ratified the European Convention. See Ch. V infra.
Ibid. See infra, p. 16, at note 46.
Goedhuis, “The International Law of Outer Space,” 109(11) Recueil des Cours 263 (1963). Note particularly his discussion of Resolution 1802 (XVII): Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, December 13, 1963, and Resolution 1962 (XVIII): International Co-operation in the Peaceful Uses of Outer Space, December 13, 1963. Accord, Lucas, “Space Law” Recueil des Cours (1964).
U.N. Gen. Ass. Off. Rec., 15th Sess., Annexes, Part II, 1960–61. Agenda Item 87. See also the prior discussion of Item 87 in U.N. Gen. Ass. Off. Rec, 15th Sess. Plenary-Meetings, 2: 1, at 925-939, 944-947. 1960–61. U.N. Gen. Ass. Off. Rec, 18th Sess. Supp. No. 15 (A/5515) at 8-9 1963. See the earlier Resolutions of 1514 (XV) of 14 Dec. 1960; 1654 (XVI) of 17 Dec. 1962.
1415 (XV) U.N. Gen. Ass. Off. Rec, 15th Sess., Annexes, Part II, 1960–61, at 8.
Nevertheless, nine states abstained from voting; moreover, it should not be implied that acceptance was universal before the final vote was taken. Prior to the final adoption the Soviets proposed the inclusion of an additional item. Ibid. See Doc. A/4501, 23 Sept. 1960, at 1-2.
Excellent works have already dealt with these subjects. Remec. The Position of the Individual in International Law According to Grotius and Vattel (1960) and Nørgaard, The Position of the Individual in International Law (1962).
Since the completion of the above text, Japan has joined the OECD bringing the total number of States to twenty-one, and Malta has become the eighteenth member of the Council of Europe.
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Gormley, W.P. (1966). Implementing Man’s Natural Rights: The Developing International Law. In: The Procedural Status of the Individual before International and Supranational Tribunals. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9530-0_1
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