57 VASAK KAREL The International Dimensions of Human Rights

THE INTERNATIONAL
DIMENSIONS OF
HUMAN RIGHTS
Karel Vasak
General Editor
Revised and edited for the English edition
by Philip Alston
Volume 1
GREENWOOD
0
G
P
PRESS
WESTPORT, CONNECTICUT
UNESCO, PARIS, FRANCE

Library of Congress Cataloging in Publication Data
Dimensions internationales des droits de lhomme.
English.
The International dimensions of human rights.
Translation of: Les dimensions internationales des
droits de lhomme.
Bibliography: v. 2, p.
Includes indexes.
1. Civil rights (International law)-Addresses, essays,
lectures. 2. Civil rights-Addresses, essays, lectures.
I. Vasak, Karel. II. Alston, Philip. III. Unesco.
IV. Title.
K3240.6.D5513 341.481 81-22566
ISBN: O-313-23394-2(set) AACR2
ISBN: 0-313-23395-O(vol. 1)
ISBN: O-313-23396-9(vol. 2)
Copyright 0 1982 by Unesco

All rights reserved. No portion of this book may be
reproduced, by any process or technique, without the
express written consent of the publisher.
Library of Congress Catalog Card Number: 81-22566
Greenwood Press ISBN: O-313-23394-2(set)
Unesco ISBN: 92-3-101477-3

First published 1982 by the United Nations Educational, Scientific and Cultural
Organization, 7, Place de Fontenoy, 75700, Paris, France, and Greenwood Press,
a division of Congressional Information Service, Inc.
88 Post Road West, Westport, Connecticut 06881
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
_I ___-_ -.-_,_-- -_-._ _I_- .-----

Contents
...
Tables x111
Foreword xv
Preface xxi
...
Abbreviations xx111
1. Human Rights: As a Legal Reality

Karel Vasak 3
1. First Requirement: A De Jure State 4

2. Second Requirement: A Specific Legal
Framework 6
3. Third Requirement: Effective Guarantees 8
2. Historical Foundations of Human Rights and Subsequent

Developments
Imre Sxabo 11
1. Human Rights in General 11

2. The Emergence of Human Rights at the International
Level 20
3. The Universal Declaration of Human Rights 23
4. The International Covenants on Human Rights 28
5. The Implementation of Human Rights 34
PART I: PRINCIPLES AND NORMS OF

HUMAN RIGHTS
3. Distinguishing Criteria of Human Rights
Theodoor C. van Boven 43
1. Fundamental Human Rights-Other Human

Rights 43
vi Contents
2. Civil and Political Rights; Economic, Social and

Cultural Rights 48
3. Individual Rights; Collective Rights 53
4. Fundamental Principles of Human Rights:

Self-Determination, Equality and Non-Discrimination
Karl Josef Partsch 61
1. Self-Determination 62
2. Equality 68
3. Non-Discrimination 72
5. Survey of the Positive International Law of Human

Rights
Theodoor C. van Boven 87
Introduction: Diversity of Sources 87

1. General Instruments 89
2. Specific Instruments 92
3. Customary Law and General Principles of Law 105
4. Decisions of International Organs 107
5. Doctrine 110
6. Economic, Social and Cultural Rights

Vladimir Kartashkin 111
1. The Right to Work 115

2. The Right of Everyone to Just and Favourable
Conditions of Work 116
3. Trade Union Rights 118
4. The Right of Everyone to Social Security, Including
Social Insurance 120
5. The Right to Protection of and Assistance to the
Family, Mothers and Children 121
6. The Right to an Adequate Standard of Living 122
7. The Right of Everyone to the Highest Attainable
Standard of Physical and Mental Health 124
8. The Right of Everyone to Education 125
9. Cultural Rights 127
10. Equality in the Enjoyment of Economic, Social and
Cultural Rights 130
Contents vii
7. Civil and Political Rights 135
1. Problems in the Application and Interpretation

of Civil and Political Rights by Frank C. Newman 135
2. Analytical Examination of Civil and Political Rights
by Karel Vasak 142
Conclusions by Frank C. Newman 160
8. Principles and Norms of Human Rights Applicable

in Emergency Situations: Underdevelopment,
Catastrophes and Armed Conflicts
Stephen P. Marks 175
1. Emergency Arising from Economic and Social

Conditions as a Whole 176
2. Emergency Arising from Force Majeure: Natural
Catastrophes 186
3. Emergency Arising from the Existence of Internal
Disturbances and Armed Conflicts 190
4. Comparison Between the Different Types of Conflict
Situations in Terms of the Applicable Norms and
the Notion of Jus Cogens 200
PART II: INTERNATIONAL INSTITUTIONS FOR THE

PROTECTION AND PROMOTION OF
HUMAN RIGHTS
9. The Distinguishing Criteria of Institutions

Karel Vasak 215
1. The Task of Human Rights Institutions 215

2. The Functions Carried Out by Human Rights
Institutions 218
3. The Scope of Activity of Human Rights
Institutions 221
4. The Techniques Used by Institutions for the
Protection of Human Rights 222
5. The Legal Nature of the Institution 226
SUB-PART I: UNIVERSAL INSTITUTIONS
10. The Principal Institutions and Other Bodies Founded

Under the Charter
Egon Schwelb and Philip Alstolz 231
...
Vlll Contents
1. The Principal Organs of the United Nations and the

Subsidiary Organs Active in Human Rights
Matters Established Under the Charter 232
2. Procedures Used and Action Taken by United
Nations Organs in Human Rights Matters 269
11. United Nations Institutions and Procedures Founded

on Conventions on Human Rights and Fundamental
Freedoms
Kamleshwar Das 303
General Introduction 303

(a). The International Convention on the Elimination
of All Forms of Racial Discrimination 307
(b). International Covenants on Human Rights and
Optional Protocol to the International Covenant
on Civil and Political Rights 330
(c). Other Conventions on Human Rights and
Fundamental Freedoms 348
12. The International Labour Organisation (IL01

Nicolas Valticos 363
Introduction: The Place of Human Rights in the Consti-

tution and the Various Instruments of the IL0
and the Legal Framework for their Protection 363
(a). Supervisory Machinery Applicable to All the
Conventions and Recommendations 368
(b). Special Machinery for the Protection of Freedom
of Association 381
(c). Special Inquiries and Studies 387
(d). Education and Training Measures 390
(e). Technical Co-operation and the World Employment
Programme 390
13. Unesco and Human Rights

Hanna Saba 401
1. Unescos Normative Activities in the Field of Human

Rights 402
2. Implementation of the Convention for the Protection
of Cultural Property in the Event of Armed Conflict 403
3. The Implementation of the Convention Against
Discrimination in Education 410
Contents ix
4. Procedures Established by the Executive Board or

the General Conference 416
14. The Implementation of Humanitarian Law

Chrktian Dominick 427
1. The System of Supervision Instituted by the Geneva

Conventions 427
2. The Protecting Powers and Their Substitute 429
3. The Delegations of the International Committee of
the Red Cross 439
4. Recent Developments and Appraisal 443
SUB-PART II: REGIONAL INSTITUTIONS FOR THE

PROMOTION AND PROTECTION OF
HUMAN RIGHTS
15. Introduction
Karel Vasak 451
1. The United Nations and Regional Human Rights

Institutions 451
2. Regional Human Rights Institutions-The Present
Position 453
3. Human Rights and Regional Integration 454
16. The Council of Europe

Karel Vasak 457
1. The European Convention on Human Rights 458

2. The European Social Charter 536
17. The Organization of American States (OAS)

H&tor Gros Espiell 543
1. The Inter-American Commission on

Human Rights 548
2. The American Convention on Human Rights 555
3. The Inter-American Commission on Women 566
4. The Inter-American Childrens Institute 567
18. The League of Arab States

B. Boutros-Ghali 575
X Contents
Introduction: Establishment of the League and Its

Relations with the United Nations 575
1. The Regional Arab Commission on Human Rights 576
2. The Draft Declaration for an Arab Charter of Human
Rights 579
3. Other Relevant Activities 579
19. The Organization of African Unity (OAU) 583
1. Human Rights in Africa by Keba MBaye 583

2. The Place of Human Rights in the Charter of the
Organization of African Unity by Birame Ndiaye 601
3. African Charter on Human and Peoples Rights 616
20. The Socialist Countries and Human Rights

1. The Socialist Concept of Human Rights 631

2. Co-operation Among Socialist Countries in the Field
of Human Rights 644
21. Asia and Human Rights

Hiroko Yamane 651
1. Evolution of the Approach to Human Rights

Problems 653
2. Various Views and Types of Action for the Promotion
and Protection of Human Rights in Asia: Old and
New 661
3. Possibilities of Regional Co-operation for the Promotion
and Protection of Human Rights in Asia 663
22. Toward a Specific International Human Rights Law

Karel Vasak 671
Annex I. Chart of Ratification, back pocket
Annex II. Figures
1. Comparative Schema of the Implemen-

tation Machinery of the European
Convention and the American Convention
on Human Rights 684
Contents xi
2. Schema of the Implementation Machinery

of the International Covenant on Civil
and Political Rights 685
3. Comparative Schema of the

Implementation Machinery of the
European Social Charter and the
International Covenant on Economic,
Social and Cultural Rights 686
Annex III. Selected Bibliography on International

Human Rights Law 687
Index of International Instruments 739

General Index 743
Tables
8.1 Human Rights Norms Applicable in Cases of Non-

International Armed Conflicts of Public Emergency
Threatening the Life of the Nation 188
8.2 Comparison of Level of Protection as a Function of the

Type of Conflict Under International Human Rights Law
and International Humanitarian Law 201
8.3 Interface Between International Law of Armed Con-

flicts and International Human Rights Law Showing the
Place of Norms Having the Character of Jus Cogens 203
16.1 Applications Declared Admissible 476
16.2 Cases Brought Before the Committee of Ministers 504
16.3 Cases Referred to the Court 526

Foreword
Human rights are neither a new morality nor a lay religion and are much
more than a language common to all mankind. They are requirements which
the investigator must study and integrate into his knowledge, using the rules
and methods of his science, whether this is philosophy, the humanities or the
natural sciences, sociology or law, history or geography. In a word, the task is
gradually to build up or promote a genuine scientific formulation of human
rights.
This work is a treatise intended to be of use in the teaching of human rights;
it has been produced with this purpose in mind.
Since the Second World War, there has been a prodigious development of
ideas, expressions, behaviour patterns, rules and institutions, the novelty of
which lies not so much in its nature as in the scale on which it has occurred. This
has resulted in what may truly be termed a human rights phenomenon.
True, this phenomenon has not arisen es nihilo; it has derived from a past
which is common to all mankind in that human rights have benefited from
every major trend of thought. It is not our intention to demonstrate this again
because Unesco, ever mindful to give credit where credit is due by tracing
back to their origins the ideas which inspire and guide us, has already done so.
In 1965, at the memorable Oxford Round Table, the philosophy and content of
the Universal Declaration of Human Rights were examined in the context of
the various religious traditions, ideologies, cultures and dominant values of
various types of society. Then the admirable work, Birthright of Man, al-
though modestly described as a selection of texts, in fact provided a dazzling
display of those fraternal bonds which cannot but unite all those who together
constitute the human race. To make a summary here of these two fundamental
publications would be to mutilate them, but they must be constantly referred
to, if the inspiration and the very substance of this treatise are to be understood.
While the human rights phenomenon derives from the past, it is also tied
in with the present, a present in the process of continual change. In the face of
this contemporary phenomenon there is but one valid approach: that aware-
ness from which the human rights phenomenon springs must, if it is not to
xvi Foreword
lapse into a sterile romanticism or fall prey to an exclusive ideology, thereby

giving rise to an irreversible wave of violence, be sustained by objective and
impartial work. In other words, the specific manifestation of human rights in
the latter half of the 20th century makes it mandatory that these rights be
regarded as subjects of scientific investigation constituting a particular field
of study, in order that respect for human rights be based upon scientific data
rather than dictated by the express requirements of a dogma.
It is for this reason that the contemporary phenomenon of human rights
demands that a genuine science of human rights be developed, the objectivity
and rigour of which will vouch for the independence of human rights from any
particular school of thought or any particular interpretation of reality.
Any science in the process of formation must start off by defining its subject
and working out its method. This was one of the goals of the Nice Colloquium,
organized on 5 and 6 March 1971, at the request of Unesco, by the Interna-
tional Institute of Human Rights, on the theme: The Methodology and Teach-
ing of the Science of Human Rights.
At the colloquium Rene Cassin, the principal drafter of the Universal
Declaration of Human Rights, gave a deductive definition of the science of
human rights: The science of human rights is defined as a particular branch of
the social sciences, the object of which is to study human relations in the light
of human dignity while determining those rights and faculties which are
necessary as a whole for the full development of each human beings personality.
On the basis of the study of the frequency of the terms to be found in national
and international texts dealing with human rights, one can formulate a second,
inductive definition. Conducted with the help of a computer which was fed
with more than 50,000 terms relating to human rights, this study has
enabled me, by using those terms which were most frequently employed, to
define the science of human rights as follows:
The science of human rights concerns the individual person living within a
state who, being accused of an offense or being the victim of a situation of war,
benefits from the protection of the law, due to either the intercession of the
national judge or that of international organizations (such as the organs of the
European Convention on Human Rights), and whose rights, particularly the
right to equality, are harmonized with the requirements of public order.
One cannot fail to be struck by the fact that in this second definition, which is
more descriptive than teleological, it is the law, synonymous with freedom,
which occupies the central place among the means of protecting human rights,
and that it is equality which, among human rights, is given the leading place.
It is obvious, as suggested by the two definitions, that in the study of human
rights all the human disciplines interconnect and enrich each other to form,
with human rights, the equivalent of philosophy in the Middle Ages, the
science of sciences. Even though some will balk at this domination of human
rights over the other sciences, we shall certainly be quite prepared to draw the
conclusion that there is a need for an interdisciplinary study of human rights.
Foreword xvii
Indeed, this is the only method which will make it possible to grasp the wealth
and variety of human rights as well as their relative and global character.4
This treatise is, however, primarily a legal treatise, intended first and
foremost to be of use in the teaching of human rights in Faculties of Law and in
Faculties of Political and Social Sciences. This juristic approach is not without
risks insofar as, in sociology, it will not provide any clear evidence of the fact
that human rights constitute one element among others of the structures of
society, and that, consequently, violations of human rights may be total and
not particularized, being the result of certain inherently unjust and inhumane
social structures. This danger of the study of human rights being thereby
deprived of some of its value is undeniable. However, this can be surmounted
by increasing the number of interdisciplinary research undertakings in the
field of human rights; Unesco will aid in this task in coming years, as is stressed
in its Medium-Term Plan.
The truth of the matter is that this first treatise on human rights is primarily
a legal treatise for practical reasons and because there is a need for such a work
in education. The language in which human rights are formulated is primarily
the language of law; it consequently falls to the jurist to be the first to gather
together the various scattered elements in this field and to provide a survey of
them. Thus, it was the Law Faculties throughout the world who were the first
to open the door to the scientific study of human rights. Today their teachers
and students demand teaching materials which will enable them to go beyond
general notions now taught everywhere in courses on constitutional law or in
those relating to public international law. It is primarily for them that this
treatise is intended.
This Unesco Treatise on Human Rights is a collective work. Having had
the honour of overseeing its preparation, I have taken care not to modify its
collective character, and each author has been allowed complete freedom to
guarantee the independent nature of the treatise. No leading idea governs this
treatise, save that it should be of use in the teaching of human rights; it
expresses no particular ideology, even though it tends perhaps to reflect all
ideologies, owing to the choice of its authors.
Of course, this diversity is not without drawbacks. For example, after
reading this treatise, the reader will not know if the right to self-determination
is a genuine human right, if it is a necessary, but not sufficient, condition for
human rights, or if it is a so-called constitutional principle of human rights. All
these theses are formulated, explicitly or implicitly, in this work. In the final
analysis, the diversity of views presented constitutes an invitation to the
reader to exercise his own right as a human being to choose freely one or the
other of these theses or to propose his own.
The divergence may be even more fundamental. Thus, some of the authors
of the treatise support the thesis of the absolute sovereignty of the State and,
consequently, the absolute bearing of Article 2, paragraph 7, of the United
Nations Charter, being of the opinion that human rights are solely a matter of
...
xv111 Foreword
domestic jurisdiction and that the international protection of human rights is

in actual fact merely a particular form of co-operation between sovereign
States. Other authors of the treatise are far from subscribing to this thesis.
While not questioning the notion of sovereignty, they emphasize its limits and
relative character and, most of all, they stress its subordination to interna-
tional law, of which human rights form a part, particularly since human rights
have been enshrined in several provisions in the United Nations Charter. In
point of fact, the opinions differ only in regard to the extent to which sover-
eignty is, if not limited, at least determined in respect of its exercise, by the
development of international law and, primarily, by international human
rights law, the existence of which, in my opinion at least, is now difficult to
deny.
Other examples of similarly conflicting views, and consequently of the same
freedom of critical opinion, can be found in the pages of the treatise. Is this a
defect? I do not think so, being of the opinion that all the theses deserve to be
known provided, however, that they are set forth in a spirit of tolerance and of
respect for others, as this treatise seeks to do. If, however, the treatise contains
anything that gives offence, it does so unintentionally and, above all, unwittingly.
In concluding this foreword, I should like to thank my colleagues, all of
whom have become my friends, who contributed to the preparation of this
treatise:
Imre Szabo (Hungary), Professor at the University of Budapest; Director
of the Institute for Legal and Administrative Sciences of the Hungarian
Academy of Sciences;
Theodoor C. van Boven (Netherlands), former Director of the United Na-
tions Division of Human Rights; former Member of the United Nations Sub-
Commission on Prevention of Discrimination and Protection of Minorities;
Karl Josef Partsch (Federal Republic of Germany), Professor and former
Rector of the University of Bonn; Member of the United Nations Committee
on the Elimination of Racial Discrimination;
Vladimir Kartashkin (USSR), Special Assistant to the Legal Counsel of the
United Nations; former Senior Researcher, Institute of Law and of the State;
Frank C. Newman (USA), Professor Emeritus and former Dean of the
School of Law, University of California, Berkeley; Associate Justice of the
Supreme Court of California;
Stephen P. Marks (USA), member of the Unesco Division of Human Rights
and Peace; former collaborator of the International Institute of Human Rights,
Strasbourg;
Egon Schwelb (United Kingdom), former Deputy Director of the United
Nations Division of Human Rights, and former Lecturer in Law Emeritus,
School of Law, Yale University, whose death in 1979 was a great loss to the
cause of human rights;
Philip Alston (Australia), former member of the United Nations Secretar-
iat; member of the United Nations Division of Human Rights;
Foreword xix
Kamleshwar Das (India), former Deputy Director of the United Nations

Division of Human Rights;
Nicolas Valticos (Greece), Assistant Director-General and Adviser for Inter-
national Labour Standards, International Labour Organisation;
Hanna Saba (Egypt), former Assistant Director-General of Unesco;
Christian Dominice (Geneva), Professor and former Dean, Faculty of
Law, University of Geneva;
Hector Gros Espiell (Uruguay), Secretary-General of OPANAL (Organiza-
tion for the Abolition of Nuclear Weapons in Latin America); former Member
of the United Nations Sub-Commission on Prevention of Discrimination and
Protection of Minorities;
Boutros Boutros-Ghali (Egypt), Minister of State for Foreign Affairs of
Egypt; former Director of the Department of Political Science, Cairo University;
Keba MBaye (Senegal), First President of the Supreme Court of Senegal;
Judge at the International Court of Justice;
Birame Ndiaye (Senegal), Lecturer at the Faculty of Law and Economics of
Dakar;
Hiroko Yamane (Japan), member of the Unesco Division of Human Rights
and Peace.
It goes without saying that in a collective work such as this treatise, the
merits are, above all, those of its authors. My colleagues and Unesco have
honoured me in entrusting to me the formidable and exciting task of being
general editor of this treatise. I crave the indulgence of the jury of readers for
any defects and hope others will have the courage to undertake similar works
in the future.
The General Editor
Karel Vasak
Note concerning this English edition

This textbook was originally published in French by Unesco in 1978 under
the title Les dimensions internationales des droits de lhomme. In the prepa-
ration of the present English version a considerable amount of revision and
updating of the various contributions has been undertaken in order to maxi-
mize their usefulness and currency. In general, this has been done by, or in
consultation with, the various authors. However, in some instances this has
not proved possible and responsibility for any changes, all of which have been
undertaken in the spirit of the original version, rests with the editors. As far as
possible the information herein is that available as of January 1, 1982.
* Presently Legal Adviser to Unesco and formerly Director ofthe Unesco Division of Human
Rights and Peace: at the time of the initial preparation of this volume, Secretary-General of
the International Institute of Human Rights.
xx Foreword
NOTES
1. Unesco, Medium-Term Plan (1977198Z), Dot. 19 C/4, p. 7, para. 1122.
2. Round Table on Human Rights, Oxford, 11-19 November 1965. Three of the written
communications presented to the Round Table have been published in the lnternation,ul
Social ScienceJournal, Vol. XVIII (1966), No. 1, on The Marxist approach (M. Hirszowicz),
The liberal Western tradition of human rights (D.D. Raphael) and The Hindu and Bud-
dhist traditions. Other communications related, inter alia, to The problem of human rights
in the Judeo-Christian tradition (Rev. C. Fabro), The problem of human rights in other
Asian traditions (M. Ito), The problem of human rights in the Islamic tradition (A.A.V.
Wafi), Human rights and negritude (M.L. Diakhate) and The liberal tradition of human
rights in the West (R. Cassin).
3. Unesco, 1968, prepared under the direction of Jeanne Hersch.
4. See the demonstration of the interdisciplinary nature of human rights and the need for
an appropriate method in Methodologie des droits de lhomme, Vol. IV of MClanges
Renk Cassin, Paris, 1972.
5. See the conclusion of the world survey on The teaching of human rights in universi-
ties published in the Human Rights Jourrtal, Vol. VI, 1973,pp. 4-222; and the conclusions of
the International Congress on the Teaching of Human Rights, Vienna, 12-16 September
1978, in The Teaching of Human Rights, Paris, Unesco, 1980.
Preface
The action of Unesco in support of human rights is in accordance with the

highest purpose of the Organization as defined by its Constitution:
to further universal respect for justice, for the rule of law and for the human rights and
fundamental freedoms which are affirmed for the peoples of the world, without distinction of
race, sex, language or religion, by the Charter of the United Nations.
In regard to the teaching of human rights, the United Nations Commission

on Human Rights has recognized Unescos specific role by requesting it to
consider the desirability of envisaging the systematic study and development
of an independent scientific discipline of human rights, taking into account the
principal legal systems of the world, with a view to facilitating the understand-
ing, comprehension, study and teaching of human rights at university level
and subsequently at other educational levels. . This treatise is the result of
Unescos efforts in the direction of universities. It has been produced under
the auspices of Unesco at the initiative of the International Institute of Human
Rights of Strasbourg.
Unesco wishes to express its warmest thanks to the General Editor and the
authors of this treatise, who have managed to deal with the subject of human
rights in a spirit of mutual co-operation and understanding. Of course, the
opinions expressed in this work and the interpretation of the facts which it
contains are the sole responsibility of the authors and thus do not commit
Unesco, although Unesco fully endorses the objectives shared by all the
authors, namely, universal and effective respect for human rights and funda-
mental freedoms. Unesco hopes that this treatise will make a tangible contri-
bution to the realization of this aspiration which, throughout the history of
mankind, has been the aspiration of all.
*The designations employed and the presentation of material throughout the publication do
not imply the expression of any opinion whatsoever on the part of Unesco concerning the legal
status of any country, territory, city or area or of its authorities, or concerning the delimita-
tion of its frontiers or boundaries.
Abbreviations
AJZL American Journal of International Law

ECHR Yearbook European Convention on Human Rights Year-
book
ECOSOC Economic and Social Council
FA0 Food and Agriculture Organization
GA General Assembly
HR Human Rights: A Compilation of International
Instruments (United Nations, 1978 ed.)
IBRD International Bank for Reconstruction and De-
velopment (World Bank)
ICJ International Court of Justice
ZCLQ Z&ernational and Comparative Law Quarterly
IL0 International Labour Organisation
IMF International Monetary Fund
NGO Non-Governmental Organization
OAS Organization of American States
OAU Organization of African Unity
RCADZ Recueil des tours de 1AcadBmie de Droit Zn-
temational (Collected Courses of the Hague
Academy of International Law)
RDHIHRJ Revue des droits de lhonzmeltiuman Rights
Journal
RecueillCollected Texts Collected Texts of the Decision of the Euro-
pean Commission of Human Rights
Res. Resolution
RGDZP Revue generale de droit international public
Sub-Commission United Nations Sub-Commission on Prevention
of Discrimination and Protection of Minorities
xxiv Abbreviations
UN United Nations
UNESCO United Nations Educational, Scientific and Cul-
tural Organization
UNTS United Nations Treaty Series
WHO World Health Organization
THE INTERNATIONAL
DIMENSIONS OF
HUMAN RIGHTS
1 AsHuman Rights:
a Legal Reality
Karel Vasak
A modern expression of a long-established reality, human rights as a whole

were for a long time of only moderate interest to the jurist. Having strong
political connotations, the subject of human rights was relegated to that
uncertain zone where the disquieting shadows of politics eclipsed the light of
pure law which provided the technique preferred by the jurist, familiar with
the analysis of age-old codes of law.
Only the philosopher of law took an interest in human rights, behind which
he sought to identify the aims of the political authorities. However, his intel-
lectual approach was too isolated to have any effect on traditional attitudes.
This strange embarrassment on the part of the jurist in the face of the
subject of human rights is in the process of disappearing at the domestic
level. The integration of the political sphere into law has had the effect of
causing the jurist to shed that which smacked excessively of the scholastic
approach in his training in civil law. The gradual positivization of human
rights has removed the programmatic character that the scholarly texts es-
tablishing them seemed to attribute to them by means of language that was
perhaps forceful and even revolutionary, but definitely foreign to the style of
classical law. Today, the declarations of rights which preface constitutions
are increasingly becoming a source of law from which judges are tempted to
draw the decisive argument which clinches a case.
Although at the present time there are few revolutions that are fought in
the name of human rights (and this is perhaps regrettable), the number of
proceedings instituted in order to have those rights respected are innumera-
ble. This change in outlook demonstrates better than anything else the fact
that human rights have become a reality in law.
In the context of day-to-day reality, however, the fate of human rights
varies so much in terms of the geographical area under consideration that we
are sometimes tempted, like the French revolutionaries of 1789, to erect here
and there in the world frontier posts bearing the legend: Here begins the
land of freedom. But it is not our intention to examine the discrepancies
which may exist in the different countries between regulations relating to
4 Karel Vasak
human rights and their application, and to seek the causes. Such a study, as
interesting as it might be, would serve only to bear out a commonplace
observation, namely, that it is extremely rare for actual situations to be in
conformity with the law. Let it be said, moreover, that such a discrepancy is
not necessarily always to be condemned, since it may reveal that in reality
man benefits from greater protection than that granted to him by legal texts.
Human rights may thus fail to correspond to the texts establishing them.
However, before comparing the two, which necessarily involves a value judg-
ment, should we not seek to ascertain the conditions in which human rights
become a reality in law or how human rights, which have been merely pro-
claimed, even in solemn form, become established as guaranteed human
rights? In other words, insofar as legal reality is synonymous with positive
law (and for the jurist, this cannot but be the case), it is important to seek to
establish guidelines for a legal system of human rights whereby the individ-
ual may really be ensured of his human rights and be able to enjoy them in his
daily life. It is here that an essential, but often neglected preambular para-
graph of the Universal Declaration of Human Rights should be recalled. And
it is to be recalled all the more forcefully in that it provides, in the final
analysis, the best justification for the work undertaken under the auspices of
Unesco in this treatise:
Whereas it is essential, if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law. .
In order for human rights to become a legal reality, three requirements
must be met:
- an organized society must exist in the form of a de &re State;
- within the State human rights must be exercised in a pre-established
legal framework, which may nevertheless vary according to circumstances
and according to the nature of the rights;
- lastly, those entitled to exercise human rights must be provided with
specific legal guarantees and, in particular, recourse must be provided so as
to ensure that those rights are respected.
1. FIRST REQUIREMENT: A DE JURE STATE

Man can be free only in a free State. It follows from this banal truth that
human rights hinge directly on the ways in which the political institutions
governing peoples are organized and that these rights therefore depend closely
upon the legal system of society as a whole.
This first requirement in fact covers two requirements:
- for a State to be free, the people which composes it must be able freely to
decide its fate (self-determination);
- the people must freely define, by means of general and impersonal laws,
the legal system governing human rights (the rule qf law).
Human Rights: As a Legal Reality 5
(a). Self-determination
A great deal has been written on the self-determination of peoples, with
reference to human rights. However, very often the authors involved, influ-
enced by the prestige enjoyed by human rights in contemporary life, make
self-determination into a genuine human right. This conception is also shared
by the United Nations since the United Nations Covenants on Human Rights
start off by declaring:
All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
The third paragraph of the same Article even defines the nature of the
undertaking contracted since it stipulates:
The States Parties to the present Covenant, including those having respon-
sibility for the administration of Non-Self-Governing and Trust Territories,
shall promote the realization of the right of self-determination, and shall
respect that right, in conformity with the provisions of the Charter of the
United Nations.
The fact that the self-determination of peoples has been able to be placed
on the same footing as, and included among, human rights would seem to be
due more to reasons of political expediency than to there being any substan-
tive basis for so doing. Being able to be exercised only collectively, self-
determination is to peoples what freedom is to individuals, that is to say, the
very basis of their existence. While self-determination cannot be an individ-
ual human right, it is definitely the necessary condition for the very existence
of human rights in the sense that, where it does not exist, man cannot be free
since he is not allowed to liberate himself.
But while self-determination is the necessary condition for the respect of
human rights, is it also a suficient condition? No one would dare to affirm it
so long as it is obvious that independence acquired through self-determination
has not always been synonymous with the liberation of the community nor
has it been necessarily followed by the liberation of individuals.
(b). The rule of law

Human rights become a reality in law only in a dejure State. Without enter-
ing into theoretical discussions, it may simply be said that a de jure State is
one in which all the authorities and all individuals are bound by pre-established
general and impersonal rules, in a word, by law. Such indeed was the prevail-
ing conception at the time of the French Revolution, which, in this connec-
tion, merely made explicit an idea which had been subscribed to for a far
longer time. Thus, it is stipulated in Article 4 of the Declaration of the Rights
of Man and of the Citizen of 1789 that the exercise of the natural rights of
every man has no other limits than those which are necessary to secure to
6 Karel Vasak
every other man the free exercise of the same right; and these limits are
determinable only by the law.
Although in our time the law is hardly the expression of the general will, as
Rousseau contended, it remains the most effective practical means for citi-
zens to preserve the sphere of human rights from the executive, through the
role which they play in choosing their legislative body. In other words, the
law, insofar as it 4s the work of a parliament elected by the citizens, consti-
tutes the sole possible legal basis for human rights. It is for this reason that
human rights are bound to be more likely to exist in countries with a parlia-
mentary tradition. Historically, it can be observed that parliamentarism and
human rights have progressed in conjunction with each other, the former
becoming the guarantee of the latter, while the latter became the basis for
the former. Conversely, it is very difficult for human rights to gain accep-
tance in countries where the idea that the law should be the work of parlia-
ment is unknown, and where the parliament is regarded solely as a place
where governmental decrees are recorded.
Thus, it is evident that through the medium of the law and the work of
parliament links are established between human rights and a countrys politi-
cal system. Moreover, human rights are more likely to be achieved in a
political, economic and social democracy. While it is necessary that a demo-
cratic system for human rights becomes a reality, conversely, democracy
cannot be maintained in the absence of human rights.
2. SECOND REQUIREMENT: A SPECIFIC LEGAL FRAMEWORK

Human rights would be meaningless if they were not assigned a place within
the social order in which they are to be exercised. This means that human
rights, which are essentially individual in character, for they are meant to be
enjoyed by individuals, constitute a social phenomenon by virtue of those for
whom they are intended. We too frequently forget this last aspect of the
problem, which leads us to set in opposition, human rights on the one hand,
with the authorities on the other. No one-except perhaps out-and-out
anarchists-would deny that life in society, which is the proper context of
human rights, cannot dispense with political authority. Chesterton has rightly
written that if there existed a society composed solely of Hannibals and
Napoleons, it would be better, in case of surprise, for them not all to be in
command at the same time. But are not human rights, which from the outset
turn each one of us into Hannibals if not Napoleons, consequently bound to be
in opposition to the political authority which springs from life in society?
Starting from this opposition, a natural and mechanical one, the conclusion is
reached that there can only be a balance between human rights and political
power when the two parties involved are subject to real limitations. Such a
conception, based upon a latent and potential conflict between human rights
and political power, seems dangerous if human rights are to become a reality
in law. For, as has been pointed out, in a conflict situation human rights
represent law without power, whereas, by contrast, the political authority
only sometimes represents the law, but always represents power. Therefore,
if there is a conflict, human rights will always be the losers.
(a). Human righ,ts and the creation of a legal system for their protection
Going to the heart of the matter, it becomes clear, however, that the social
purpose of human rights results less in their being limited than in their being
promoted in society or, to use legal language, in the creation of a legal system
for their protection. When the legislature orders that traffic will keep to one
side of the highway, it does not restrict the freedom of traffic to move but on
the contrary makes it possible. When, by nationalizing virtual monopolies or
by imposing a highly graduated tax, the legislature attacks the right of
property, this involves not so much limiting that right as making it possible
for the greatest number to benefit. There are even many human rights which
do not really exist until such time as the society through its political authority
creates a place for them in the social order. The right to work may amount to
no more than permission to die of hunger unless the State creates the condi-
tions conducive to its exercise. The right to education would be but the right
to ignorance for the great majority if the State did not provide the actual
facilities necessary for the enjoyment of that right.
In the final analysis, it is apparent that the social purpose of human rights
makes them, if not dependent on, at least related to, political power. Far
from being in opposition, human rights and political power support each
other. The political authority therefore cannot limit human rights, just as
human rights should not be used as an arm against those in power.
It immediately becomes clear that this indispensable and reciprocal link
will be difficult to maintain merely at the level of legal texts, established by
the authorities with a view to the socially harmonious exercise of human
rights. For, very easily, the political authority will in fact, after introducing
the necessary laws for the protection of human rights, gradually start re-
stricting them and will perhaps end up by purely and simply suppressing
them.
(b). Grounds for the creation of a legal system for the protection of human
rights
For human rights to become a reality in law, they have to be governed by a
system of law established by the political authority. However, it is important
that the sole purpose in establishing such a system be that of facilitating their
exercise, taking into account three imperative factors: the human rights of
others, the life of the group regarded as an entity and the life of mankind as
a whole.3
Without examining in detail these three grounds for the creation of such a
legal system, we may simply note that their observance will result in human
8 Karel Vasak
rights becoming a reality in law, even though they may vary in accordance
with time, place and circumstances. Thus, for instance, legal provisions gov-
erning the freedom of the press cannot follow the same lines in a developed
country as in a developing country. For there can be no doubt that in a
country of the latter type the mere fact that the press is in the hands of
foreigners makes it necessary for there to be different provisions, not to
mention the considerations by which that State is bound arising from the
need to enable the people to overcome their economic under-development.
However, this relative character of human rights in legal reality should not
by any means call into question the principle of freedom, which is, and which
should remain, at the basis of human rights. In other words, the establish-
ment of legal provisions, for whatever reason and whatever their scope, must
allow for the continued existence of human rights.
3. THIRD REQUIREMENT: EFFECTIVE GUARANTEES

Even when proclaimed by a free State and protected by legal provisions
established by the legislature, human rights would scarcely amount to much
if they were not effectively guaranteed or, in other words, if those entitled to
them were not provided with the means of obtaining redress for violations of
which they have been the victims. Such guarantees may be placed in two
categories: organized guarantees and unorganized guarantees.
(a). Organixed guarantees

These guarantees exist within the framework of the State in the form of
procedures enabling the individual to obtain either the annulment of the
measures which constitute a violation of his human rights or, in cases where
this is impossible, financial compensation. There is no point in going into this
matter in detail, it being well-known. It is also unnecessary to emphasize the
superiority of legal procedures, especially those of a constitutional nature,
over procedures relating to non-legal bodies. At the international level organ-
ized procedures now exist both on a universal and regional basis and some of
these will be considered in the following pages, although the legal nature of
such procedures varies considerably from one system to another.
(b). Unorganixed guarantees

Among unorganized guarantees of human rights, the right to refuse to obey
an unjust law seems to be engraved, if not in the positive law of every
country, at least in the minds of all men.
But it is resistance to oppression, when organized procedures are inade-
quate, which constitutes the supreme guarantee of human rights. Officially
enshrined in the Declaration of Independence of the United States of Amer-
ica of 4 July 1776, resistance to oppression acquired its real significance as a
guarantee of human rights under the French Revolution. Thus, the Declara-
tion des droits de lhomme of 24 June 1793 proclaims: Resistance to oppres-

sion is the consequence of other human rights. And it adds the following,
much-quoted provision: When the government violates the rights of the
people, insurrection is for the people and for each section of the people the
holiest of rights and the most indispensable of duties.
While the jurist cannot fall to recognize the value of this supreme guaran-
tee of human rights, he will, as a man, hesitate before proposing that it be put
into effect in the world of today. For although in the last century it was still
possible for a small amount of damage to the municipal highroads, caused by
barricades, to bring about the fall of an oppressive government, it has been
shown on numerous occasions that the modern State, especially when it
receives foreign assistance, is so well equipped that the most just of revolts
runs the risk of ending in a blood-bath.
In the face of such odds should we conclude that resistance to oppression
belongs to the romantic period of our common history and that, at the present
time, human rights depend on the good will of the State? I personally would
hesitate to answer in the negative to this terrible question.
And one is all the more embarrassed at having to reply in such a way, for
earlier in this analysis, emphasis was placed on the need to make political
power and human rights mutually interdependent in the interests of the
latter. Unfortunately, we are compelled today to acknowledge the increas-
ingly forceful hold that the State exercises over individuals and its increas-
ingly numerous encroachments upon the sphere of individual freedom. Even
those who, by virtue of their political choices, expect a great deal of the
State, warn us against this modern Leviathan. Is it not symptomatic that a
political leader has written in substance that the modern State, with its huge
organizations, is, by essence, totalitarian and its natural tendency is towards
despotism?4 And another English author has expressed the same idea in a
more colourful, and hence more striking way, by suggesting that whereas,
up to now, the machine-gun has been regarded as the symbol of modern
tyranny, it could perhaps be contended that it has been supplanted by the
telephone and the card index.5
What, then, should be done? The only way, inadequate as it may be, of
emerging from the blind alley to which the omnipotence of the modern State
seems to have relegated human rights, consists of stepping outside the nar-
row limits of the State in order to pose the problem of human rights at the
international level. Whether this be within regional or world organizations,
human rights should thus be treated as an international problem-the only
real international problem.
It would, however, be puerile to think that the internationalization of
human rights will provide the solution to all our difficulties. This illusion is all
the more to be guarded against in that, at the present time, all international
organizations, even those that are usually described as supra-national, are in
fact no more than inter-State groups where power still rests with those same
10 Karel Vasak
States. The most striking illustration of this situation is supplied by the

European Convention on Human Rights, an instrument which represents the
most notable advance towards the international realization of human rights.
When a State is judged by the European Court of Human Rights to be
guilty of violating human rights, it falls to that particular State, according
to Article 50, to draw the proper consequences, the decision of the Court not
being directly enforceable. Only if the municipal law of the interested State
allows reparation to be made for the consequences of the violation can the
Court afford just satisfaction to the injured parties. In most cases, this
turns out to be of a financial nature. What happens if the State does not give
effect to the decision of the Court? The drafters of the Convention, trusting,
naive or helpless, it matters little, have not provided for this eventuality. At
the very most, it would then be possible, by invoking the Statute of the
Council of Europe, to consider expelling the guilty State from the Organiza-
tion. However, one does not necessarily improve the patients health by
breaking the thermometer.
The only way out of this new blind alley is to appeal to those who are the
first to be concerned with the protection of human rights, that is, every one
of us. For, in the last analysis, it is on ourselves, the people, that the States
observance of human rights depends. It is public opinion, especially when
the nationals of several countries are involved, which alone is capable of
forcing States to respect human rights. For in todays world, the only effec-
tive sanction against the violation of human rights remains, whether one likes
it or not, public opinion. And it is for this reason that I should like with all my
heart to express the wish that this treatise, which is intended to be used in
university teaching and in the training of human rights teachers, will also
become an instrument for informing the general public. On this hinges the
success of Unescos endeavour to develop understanding and protection of
human rights.
NOTES
1. Karel Vasak: La Convention europdenne des droits de lhomme, Libraire generale de
droit et de jurisprudence, Paris 1964,327 pages.
2. See G. Burdeau: Les libertds publiques, Presses universitaires de France, Paris 1961,
p. 29.
3. Cf. Salvador de Madariaga: Droits de Ihomme ou relations humaines? (Concerning
the new Universal Declaration of Human Rights, Unesco, Paris 1949, p. 44).
4. R.H.S. Crossman: Socialism and the New Despotism, Fabian Tract 298, London 1956,
p. 24.
5. Anthony Hartley: A State of England, Hutchinson, London 1963.
2 Historical Foundations of
Human Rights and
Subsequent Developments
Imre Sxabo
1. HUMAN RIGHTS IN GENERAL
(a). The notion of human rights

The notion of human rights falls within the framework of constitutional law
and international law, the purpose of which is to defend by institutionalized
means the rights of human beings against abuses of power committed by the
organs of the State and, at the same time, to promote the establishment of
humane living conditions and the multi-dimensional development of the human
personality.
This first general definition provides a basis on which to formulate at this
point certain fundamental laws which will be analyzed in detail subsequently:
i) that human rights constitute a juridical notion; ii) that in the legal system
human rights are covered by two branches of law; iii) that human rights
pertain to the citizen and to man; iv) and that, contrary to a mistaken concep-
tion which is commonly advanced, human rights protect an individual who is
not in conflict with the State, since the State exists solely through its organs.
(b). Historical background of human rights

For some authors, the origins of human rights go back to Greek antiquity.
They consider that human rights should come under natural law. The classic
example, taken from Greek literature, is that of Antigone: according to Sopho-
cles, when Creon reproaches Antigone for having buried her brother despite
her having been forbidden to do so, Antigone replies that she has acted in
accordance with the unwritten and unchanging laws of heaven. In philoso-
phy the general tendency is to view the problem of human rights-or more
precisely that of mans natural rights (and it is to be noted that equating the
one with the other obscures the problem at the level of theory)-in terms of
the doctrine of stoicism.
It is more difficult to seek the origins of human rights in Roman law,
although an attempt has been made to discover in Ciceros work certain ideas
12 Imre Szabo
relating to this subject. On the one hand, Roman law postulated the existence
of a natural law, that is to say, of mans natural rights: according to Ulpian,
natural law is that which nature teaches to all living beings. But, on the other
hand, this natural law is linked to the jus gentium, which has at least two
meanings. It signifies first of all the rights of those who are not Roman
citizens, and thus refers to those rights to which men are entitled wherever
they go; it also represents international law at the same time.
It should not be forgotten, particularly when speaking of the present signifi-
cance of human rights, that all that derives from the Graeco-Roman world
relates to a system in which Aristotle recognized the legitimacy of slavery.4
In that world it was considered to be perfectly natural (and therefore in
conformity with natural law) that there should exist radical social differences
which exclude ab ovo the central idea of human rights: that of the equality of
men.
(c). The Middle Ages

The Middle Ages were favourable neither to the idea of human rights nor to
their observance. Wholly under the influence of Aristotelian philosophy, Saint
Thomas Aquinas regarded natural law as deriving from reason. Thus, the
mediaeval philosophy of law, a characteristic element of which was, among
other things, the recognition by Aquinas, in the manner of Aristotle, of
slavery itself, did not recognize those human qualities that it did not under-
stand. In particular, it did not seek to place the human personality at the
centre of the concerns of law and social life. We would say today that that
philosophy was not open to any type of thinking centred upon man.
The other branch of legal thinking in the Middle Ages, which developed
considerably at the end of that period, focussed its research on the State,
soon arriving at the major principle of the sovereignty of the State. This
principle was subsequently to become one of the greatest obstacles to the
international protection of human rights.
(d). The appearance of the idea of human rights: general conditions

underlying that idea. The contract theory.
It would be a grave mistake to attempt to trace back the origins of human
rights to social systems which were not familiar with its basic condition
governing the existence of human rights, namely, the idea of freedom and
equality. It is not possible to project a new institution upon social relations
which have been superseded, and to which it does not correspond. In order
for human rights to appear as the general rule in society and for them to be
felt both as a need and as a reality, it was indispensable for there to be basic
social changes in the relations of production (and, more precisely, in the
relations of ownership) within the previous social system-feudalism. Ev-
eryones rights had to be recognized as being, in principle, equal with regard
to ownership and the acquisition and enjoyment of property. True, the right
Historical Foundations of Human Rights 13
to property had previously been regarded as a natural right, or in other

words, as a fundamental and inalienable right of man, first by Aquinas, then
later, more explicitly, by Grotius, who set this right outside the universe of
natural rights. Grotius had asserted that the right to property had been
introduced by human will and, so that we should not be offended, he invited
us to understand and to consider our property as corresponding to natural
law.
Two major ideas emerged from this line of reasoning, but both subse-
quently splintered off from their origins: these were the ideas of freedom and
equality. The idea of freedom was that of free ownership, of the free posses-
sion of property, and to this was later added the idea of free enterprise, with
all the other corollaries of freedom. But its origins should never be forgotten,
for they account for its appearance and for its development.
As for the idea of equality, it too owes its origin, at least in part, to the
appearance of a new type of ownership. It signified equality for all as regards
the right to acquire property, but considering it more closely, its true origin
turns out to be connected with the political idea of the State in the modern
sense of the term. It also concerned equality in respect of participation in
political life. Consequently, equality was, so to speak, a political idea and a
political right, whereas freedom possessed an economic character, at least so
far as its origins were concerned. According to modern political philosophy,
every individual should possess equal rights in the life of the State. Subse-
quently, the notion of equality was made to apply to the whole of man, to all
of mans abilities and all of his rights.
However, an important difference was to remain between freedom and
equality: bound up with ownership, freedom was considered to be a right
which the State could not restrict because it was an absolute right. This was
not true of equality as it was regarded as a political right and, as such, it
could be restricted by the State.
(e). Origins at the level of positive law

By and large, the origins of human rights, in respect of positive law, are
traced back to documents which appeared in recent centuries. According to
this point of view-the upholders of which are few in number since the
majority of authors consider human rights to be natural rights-human rights
are contracts concluded by the State with the population and, first of all, with
the nobility. These contracts are seen as preserving certain rights for men
while preventing the State from interfering in the exercise of those rights.
The legal force of these rights is seen as being founded (contrary to the
conception of the theory of the contract founded on natural law) on the will of
the State, or better still, in the circumstances of the period, on their recogni-
tion by the King.
The fact that human rights or agreements with a similar objective in view
have been given the form of Charters, Bills or Petitions and, where appropri-
14 Imre Szabo
ate, Declarations, has led to these documents being placed on the same
theoretical footing, although they were produced at different periods and for
different purposes. In particular, in the specialized literature, a whole dis-
cussion is to be found on the common or different nature of the Magna Carta,
the Petition of Rights and the Bill of Rights, as well as of the Declaration of
Virginia and the Bills which followed it, and the French Declaration of 1789.
What, then, are the relations between these documents? Are they of the
same social importance and significance? Are not the later documents the
logical consequence, or a simple copy, of those which preceded them?
In Central Europe, George Jellineks book on the declarations of human
rights (1904) caused a turmoil by subscribing to the view that these docu-
ments followed on from each other and were consequently directly related to
each other. Moreover, he was not the only one to express that opinion. As for
the opposite view, it suffices to draw attention here to a note in Diceys work
in which the author points out that the British documents constitute, rather,
judicial condemnations of claims or practices on the part of the Crown; as
for the American declarations, he writes: They have. the distinct purpose
of legally controlling the action of the legislature by the Articles of the
Constitution.7
Eventually, Jellinek found it necessary to observe, in the second edition of
his book, that in the United States the Bill of Rights has represented the
culminating point, whereas the French Declaration was the starting point,
which in itself constitutes a radical difference. Jellinek indirectly acknowl-
edges, at the level of the history of civilization and of philosophy, as well as
from the social point of view, the importance of the Declaration adopted by
the Constituent Assembly of 1789. We can leave the matter there. The start-
ing point of human rights in the modern sense of the term is clearly to be
found both in the Declaration of the Rights of Man and of the Citizen, voted
during the French Revolution, and in the social conditions underlying it.
(f). Conceptions based on natural law

According to the most traditional conception of human rights, at the time
that men passed from the primitive state to the social state they concluded a
contract between themselves (the idea of which was first posited long before
Rousseau), and by this contract they renounced part of their natural rights,
which they had enjoyed in their free state, while preserving certain basic
rights: the right to life, freedom and equality. The rights thus preserved
constituted eternal and inalienable rights that every social and State system
was obliged to respect. As for the origin of these rights, however, there are
various differences to be found in the way in which the conception founded on
natural law is set forth. The theory of the social contract is the product of the
school of natural law which made its appearance in the 15th and 16th centries.
According to this school, human rights are bound up with mans basic nature
from which they derive, and for which reason they constitute human rights.
According to another conception, which goes back to Locke and his Letters
on Tolerance, the starting point was tolerance in respect of other religions
or, in other words, the right to profess any religion. Again, what is involved
is a conception referring to natural law. Furthermore, this idea set the scene
for the creation of the United States of America, considering that freedom of
religion played an important part in this connection.
There do of course exist other conceptions of human rights, for instance
that according to which human rights originated in human understanding.
Conceptions of this kind were already subscribed to in the Middle Ages.
Virtually all the feudal varieties of the natural law theory (which consider the
omnipotence of the absolute monarch to be a matter of natural law) belong to
this type of thinking, and the same is true of the Kantian theory of law,
founded on reason. This theory, like all the others, is forced to start off from
certain promises established a priori and from which it is possible to deduce
human rights. We find these premises in the metaphysical character of the
rights.
In my opinion, human rights can be deduced solely from the social rela-
tions from which they have arisen. Putting it bluntly, I personally am hostile
to any theory, any explanation, based on so-called natural law. Law founded
on reason is pure fiction, as is the assumed existence of a social contract. On
the other hand, the economic development, and, correlatively, the political
development specific to the 15th and 16th centuries is by no means a fiction
since it corresponds to the real development of society. It is this evolution
which is at the root of the demand for freedom-above all, economic freedon-
in the face of feudal bondage; it was by virtue of this evolution that freedom
was postulated and, more particularly, that equality before the law was
asserted, in the face of the system of feudal privileges. These needs on the
part of society assumed the form of natural law as they were presented as
eternal needs. On this account, the relations between natural law and posi-
tive law appeared to be the relations between needs and reality, that is to
say, positive law as it was subsequently to be established.
(g). The rights of man and of the citizen

The French Declaration of the Rights of Man and of the Citizen of 1789 and
other documents, which appeared subsequently, make a distinction between,
on the one hand, the rights of man and, on the other, the rights of the citizen.
Man in these texts appears as a being who is imagined to exist outside
society, who is assumed to exist prior to society. As for the citizen, he is
subject to the States authority. On this account, the rights of man are natu-
ral and inalienable rights, while the rights of the citizen are positive rights,
rights granted by positive law. Human rights are fundamental rights for the
very same reason that they existed before the State, whereas the rights of
the citizen are subordinate to and depend upon them.
16 Imre Szabo
Marx dealt with this question in one of his early studies (On the Jewish
question)1 and reached the following conclusion:
In man and in his rights, society postulates a selfish being, independent of everyone, who
is the subject of property (private property) and whose freedom (free ownership) consti-
tutes the legal form and the basic requirement: man is an abstract subject in relation to the
State, while human rights are alleged to be natural rights, abstract natural rights. The
citizen, on the other hand, has rights only as a member of the political society: these are
rights whose value is limited. The rights of the citizen are neither absolute nor uncondi-
tional, they are not granted to man everywhere and at every moment: they are not innate
rights.
According to this view, the rights of the citizen are subordinate to the
rights of man, the citizens state depends on mans state. Political organiza-
tion and political rights appeared to serve man, selfish man, and private
property; bourgeois society was reduced to the level of the servant of private
property.
In the course of social, political and ideological development, this distinc-
tion, this hierarchy in respect of the appearance and existence of the rights of
man and of the citizen has, to a certain extent, become blurred. As the
distinction between the rights of man and the rights of the citizen has disap-
peared, the two categories have merged. Insofar as certain traces of this
distinction have remained, it has assumed new forms and has come to appear
as a criterion for differentiating between branches of law: all rights as a
whole which are recognized by Constitutions are thus considered as belong-
ing to the category of the rights of the citizen, whereas the rights of man are
those covered by international law.
In this way, the problem of human rights has been entirely reduced to the
question of the simple relationship between two branches of law, a relationship
in which constitutional law seems to be subordinate to international law. A
special situation consequently appears to exist in the relations between munici-
pal law and international law: international law has annexed part of the prov-
ince of constitutional law which has ceased to be the monopoly of municipal law. l1
(h). Constitutional law

In national systems human rights re-appear in the form of citizens rights in
constitutional law. And what is more, it is in Constitutions that human rights
are established. An example had been set by the French Constitution of 1791,
the text of which is preceded by the Declaration of the Rights of Man and of
the Citizen of 1789. The Constitutions which followed no longer provide a
general formulation of these rights in their preambles but integrate them into
the actual text as basic rights upon which the State is founded, in view of the
fact that these rights determine, in the last analysis, the relations between
the State and the citizen and define the domain in which the State does not
intercede (negative domain). At the same time, human rights become af-
fected by a specific bias in constitutional law in that they acquire a particular

character, linked up with the States internal structure.
The various Constitutions, strange to say, omit to define the effect of the
rights listed. They do not explicitly state which of these rights have a direct
effect on the basis of constitutional law, and which ones necessitate special
laws in order for them to be put into effect, and in which cases, consequently,
fundamental rights are provisions binding solely upon the legislature and are
of no benefit to citizens except by this indirect channel (this has further
contributed to the confusion which prevails in connection with the notion of
human rights).
In the socialist countries there are different views as to the place that the
citizens fundamental rights should occupy in the Constitution-whether they
should be formulated ahead of constitutional law or, on the contrary, be
included in the actual text of the Constitution. This problem conceals a sub-
stantive question: do fundamental rights constitute, together with the politi-
cal system of the State, the basis of the State, or, on the contrary, are they
but attributes of the State, a particular feature peculiar to a State system?
Affecting both the State and mans place within the State, are human rights
essential elements of the Constitution, or are they but particular, and conse-
quently secondary, aspects of it?
The reply to this question depends on the way in which these rights are
interpreted. Are they considered to be really fundamental rights or merely
relatively fundamental rights? Generally speaking, at the present time, the
system of fundamental constitutional rights is confused. The rights of man
and those of the citizen are mixed together, as are the rights of appeal
available to the citizen in the face of the organs of the State and political
rights (right to vote, etc.), which are an expression of the individuals status
as a citizen. In this heterogeneous mass certain rights, such as economic,
social and cultural rights-which are developed in fact in socialist Constitutions-
represent constitutive rights of the socialist States system, and are bound to
have a direct effect, owing to the force of the Constitution. Other rights,
however, are no more than directives addressed to the legislature, and con-
sequently do not represent constitutive rights, but merely secondary rights.
These may just as well be included at the end of the Constitution.
There is consequently in constitutional law a particular mixture of human
rights and citizens rights. It falls to theory to re-establish the notion of
human rights and to set them back in their place. But notwithstanding this
confusion, constitutions contain, in practice, a hierarchical system of citizens
rights which constitutes the starting point of the system of human rights as it
has been formulated by international law.
(i). Classijkation of the rights of the citizen

Applying various criteria from a Constitutional Law perspective, several
categories of rights can be made out among the rights of the citizens. From
18 Imre Szabo
the theoretical point of view, I shall distinguish, in the group of citizens

rights, only two categories of rights: individual rights and collective rights.
By and large, individual rights are regarded as constituting the starting
point for citizens rights. From this point of view, the emergence of the
individual and his recognition by law triggered the entire process leading to
the elaboration of those rights. This thesis is not without some basis of truth,
but only on the condition that it is admitted that individualism itself was the
product of other social forces and, above all, of changes which occurred in the
sphere of production and which ensured the individual a new and central
place. It was from this that came the political process corresponding to these
social needs, a process which had been preceded by the formulation, in the
context of natural law, of these rights as in the form of a declaration. It is
possible to highlight, in this context, those rights which signified a departure
from the feudal system and, above all, from its political methods: orders
under the Kings private seal, the arbitrariness of epistolatory censorship,
searches, as well as religious intolerance. The first role of the Declarations
was to free the new political State from these feudal practices and to define,
in this field, the individuals freedoms and rights.
Individual rights deriving from the new political and State system then
followed: man was not yet recognized as such, but merely the individual in
isolation, as an autonomous legal entity. What was already involved at this
stage were the individual rights of bourgeois society, which were held by
individuals and which gave rise to the rights of the individual in the form of
human rights.
A large proportion of these so-called individual rights, however, are not
able to be exercised in an individual capacity, without other individuals. This
exercise of rights in society does not, however, deprive the person involved
of his individuality. Each right continues to be an individual right. Thus, the
right of free association remains the individuals right, even though it is quite
clear that an association cannot be founded by a single person.
Collective rights are those which can be exercised only with the co-operation
of a group, if only in the form of a single other person (marriage) or, more
generally, of several persons (freedom of the press, of information, freedom
of assembly, etc.). What was involved here was a development which, histor-
ically, led, concomitantly with the development of society, to the extension of
collective rights at the expense of individual rights. In other words, human
life comprises an increasing number of elements which make it necessary for
the individual to collaborate with his fellows. This phenomenon was naturally
to have repercussions upon the quantitative development of citizens rights
and human rights, as was the case, for instance, with regard to the appear-
ance of life-long education. I2
Thus, after the First World War, on account of the appearance of new
States on the map of Europe, the League of Nations included in its pro-
gramme the protection of the rights of national minorities. This is a typical
case of collective legal protection. It was here too that the establishment of
an international legal system for the protection of human rights began. It was
certainly not on account of the failure of this international protection that the
United Nations practically abandoned until 1966 (cf. Article 27 of the Inter-
national Covenant on Civil and Political Rights) these groups of men and
their specific rights. At all events, it is to be noted that, having started from
questions of constitutional law, we have, by considering this matter, come to
the field of international law.
(j). Economic, social and cultural rights

One fact that is not contested by any author writing on this subject is that,
with the socialist October revolution and the new situation to which it gave
rise, there appeared in the Soviet Union, and gradually through the entire
world, a new category of citizens rights: economic, social and cultural rights.
These rights were formulated in the first Soviet Constitution of 1918. They
also appeared in 1917 in the Mexican Constitution and, in 1919, in the Weimar
Constitution. They were gradually included in all modern Constitutions.
The social and State-derived character of these rights is twofold. On the
one hand, they express the fact that the foundation of all other citizens rights
and the guarantee of their effectiveness lies in a given economic situation, in
a particular state of material conditions, in relation, among other things, to
mans social and cultural situation. In this way, a sort of hierarchical relation-
ship is established between the various rights of the citizen which, without
assuming a distinct form, indicates the general pattern of their genesis and of
their effective action, On the other hand, economic, social and cultural rights
come under citizens rights, of which they form a particular category.
Some authors deny that economic, social and cultural rights belong to the
category of human rights, arguing that they cannot be regarded as rights
in the proper sense. It is just this view which is defended by those who
interpret human rights strictly in terms of natural law. The question could
indeed be raised as to where, from the point of view of natural law, the
foundation of economic, social and cultural rights is situated. Should their
origin be sought in rational law? The scepticism of the partisans of natural
law is understandable for these rights cannot be deduced from natural law.
On the other hand, those who understand that citizens rights and human
rights are the product of positive law and of its development, as determined
by the development of society, readily acknowledge that human rights neces-
sarily become more numerous as society progresses and takes in new spheres
of social life and human existence. At the same time, society has to contract
new obligations in order to promote the flowering of the individuals cultural
personality and the development of his economic and social integrity.
From the point of view of positive law, the list of human rights and citizens
rights possesses two characteristic features. First of all, this list has contin-
ued to expand in a manner commensurate with social development, which has
20 Imre Szabo
also been under way since the French Declaration. Today we are inclined to
think that far too great a number of human rights are being established.
Secondly, it is a fact that citizens rights do not come under a single social
system but are to be found in the legal system of several social regimes; it
could even be contended that their basic elements are already contained, in
certain respects, in a very early legal system. While human rights are not
eternal rights, they are nonetheless a living reality in several social systems.
But naturally, they are to be found typically in bourgeois society. Now in our
time bourgeois society already co-exists with the new system, the socialist
system, which also recognizes human rights. It can be concluded from this
fact that the narrow national limits of constitutional law are no longer suffi-
cient for human rights which transcend national frontiers and thereby go
beyond the limits of municipal public law, falling within the framework of
international law. By the same stroke, they become formulated at a more
general level.
By dint of this process, the very subject of human rights seems to have
changed, for it would appear that the individual, as an independent person
within the State, becomes the subject of human rights, whereas in actual fact
this is not the case. And human rights may themselves consequently appear
to differ from the rights of the citizen. At all events, a new quality appears,
namely, man.
This results, once again, in enormous confusion at the level of ideas. What,
ultimately, are human rights and citizens rights? Are they identical, or, on
the contrary, different? There is one single interpretation, founded on natu-
ral law, which is consonant both with the character of citizens rights and
with that of human rights. The interpretation which it provides of both of
these rights is in fact identical. But, in my opinion, this interpretation is not
well-founded.
2. THE EMERGENCE OF HUMAN RIGHTS AT THE

INTERNATIONAL LEVEL
(a). Histomcal antecedents

In international law those rights which correspond to citizens rights are
called human rights. Upon international recognition of those rights all
States have the same duty to respect them (what are involved are the inter-
national duties of States) in their own legislation as citizens rights under
municipal law. So long as this is not the case, human rights constitute merely
rules of international positive law, which, from the point of view of municipal
law, represent but an obligation contracted by the State, a mere promise in
respect of the citizen and affecting the future. For this reason, then, an
attempt is made once again to explain human rights in terms of natural law,
for natural law too in its time constituted the prerequisite for what was to
become international positive law, as now seems to be still the case in respect
of municipal law. It is on this account that the interpretation of (interna-
tional) human rights in the spirit of natural law seems so attractive and
straightforward. And yet, once again, this interpretation is not valid.
In the confused international situation which followed the First World
War, two notions of human rights emerged. One was the notion of individual
rights. However, at the time that President Wilson recommended that provi-
sion be made for religious equality in the Covenant of the League of Nations,
no action was taken upon his proposal. The second notion was the protection
of minorities, particularly in the States created in Central Europe, the sys-
tem, which was based upon the notion of collective rights, having been insti-
tutionalized by the League of Nations. According to some authors it even
contributed to the lack of success of the League.
Naturally, the appearance of human rights in international law also had
social causes, as was the case for citizens rights. But whereas the emergence
of the rights of the citizen had in its time been the result of social progress
(and, a short time before, a manifestation of new and forward-looking needs),
the bursting of human rights upon the international scene had been the
consequence of social phenomena which cannot by any account be regarded as
positive ones. The ruthless and wholesale destruction of individuals and groups
in the fascist States, the contempt in which the human being was held and the
extreme deterioration of the relations between the State and man were fac-
tors which helped to raise human rights to the level of international law and
to cause a certain protection of those rights to be sought therein.
The first premonitory signs of change appeared in the nineteen-twenties.
Already at that time certain people had championed the idea, both within and
outside the League of Nations, of the international protection of human rights.
However, what was involved was, in the main, private proposals which could
not be carried out because they were not official.
What finally led to the official adoption of measures designed to ensure
the international protection of human rights was the number of atrocities
committed against humanity by the fascist powers during the Second World
War. These acts aroused the unanimous indignation of all those in the world
who believed in societys capacity for improvement. A wave of public opinion
arose demanding the establishment of organized international protection for
human rights and the condemnation, prohibition and repression of fascist
policy in every form. Before and during the Second World War, numerous
proposals and privately sponsored measures were introduced which resulted
in a Universal Declaration of Human Rights. It is enough to point out in this
connection that the commission instructed by the United Nations to prepare
the Declaration in 1947 had at its disposal 18 official or semi-official drafts.
Several documents or declarations contributed to this international guar-
antee of human rights, not only documents which had been prepared for the
constitution of the United Nations Organization, but some which already
22 Imre Szabo
dealt with the problem of human rights. The prime example of this was
President Roosevelts declaration of 26 January 1941 on the four freedoms:
freedom of opinion and expression, freedom of worship, the right to be free of
material want and the guarantee of life without fear. It was this same line
which was followed by the Atlantic Charter, drawn up on 14 August 1941 by
Roosevelt and Churchill, and which included, to a certain extent, the four
freedoms, adding to them, however, the need for economic progress and
social security. This prehistory finally came to an end with the Declaration
by the United Nations of 1 January 1942 (jointly made by 26 countries and
ultimately adhered to by 21 other countries), which employed the same terms
as the Atlantic Charter, and which at the same time raised the stipulations of
that Charter to the level of international rights and duties.
(b). The Charter of the United Nations

The task of the conference that met in October 1944 at Dumbarton Oaks was
to draft the constitution of an international organization which was to succeed
the League of Nations. In this projected United Nations organization, human
rights occupied a place which was admittedly still a minor one but which was
already clearly defined.
A decisive step was taken in April 1945 at the conference of San Francisco
when the representatives of the four major powers submitted various amend-
ments to the draft Charter under study by the conference. The major human
rights features of these proposals were as follows: i) the Charter should
express all human rights more clearly and more emphatically; ii) economic,
social and cultural problems and rights should be included in the Charter; and
iii) it was necessary to set up the Commission on Human Rights as one of the
UN major commissions, and provide for its creation in the very text of the
Charter.
The Charter deals in seven instances with human rights (including the
Preamble and the provisions relating to the establishment of the trusteeship
system), but in each case what is involved is a general reference to fundamen-
tal human rights and to equality before the law. There were many who
regarded this way of tackling the problem as inadequate, and they reproached
the drafters of the Charter for not having clearly stated in the Charter itself
what these human rights were. But perhaps this was not the object of the
Charter, as the matter still called for further reflection. It is enough to note
that the very concepts employed were not yet clear: for instance, that which
is referred to in the English and Russian texts of the Charter as interna-
tional problems of a cultural character is translated in French by the words
intellectual problems (Chapter I, Article 1, paragraph 3), a very different
conception of the question. Time was necessary in order to discuss these
problems and clarify notions and solutions. But, in the final analysis, the task
of drafting a special document fell to the UN. Its purpose was to interpret the
Charter from the point of view of human rights. What was involved was a
document which virtually forms an integral part of the Charter, and which
defines the significance of the references to human rights, and the way in
which they should be interpreted. This task was carried out for the first time
in history by the adoption of the Universal Declaration of Human Rights.
Thus began the real history of human rights at the level of international law.
3. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The person most responsible for the draft of the Universal Declaration of
Human Rights was Rene Cassin, the Nobel Peace Prize winner. Mr. Cassin,
who had been one of the principal promoters of human rights and who is
considered to be the true father of human rights, has compared the human
rights structure in the United Nations to a triptych of which one of the
panels, the central panel, is the Declaration, while the two side panels could
be said to be formed by the various conventions and the covenants on the one
hand and the implementation measures on the other, the latter being the
most imperfect and the least developed. This comparison seems to me to be
perfectly accurate. In any event, it is admitted today by virtually everyone
that within the United Nations the Universal Declaration of Human Rights,
adopted on 10 December 1948 by the General Assembly at its third session,
constitutes the central document for the cause of human rights. Subsequently,
that day was proclaimed by the United Nations to be Human Rights Day,
and it has remained as such ever since on the international calendar.
It is not my intention here to present the whole of the Universal Declara-
tion in detail but merely to give a general description of it and to point out the
problems which it poses. The idea that the repeated references to human
rights contained in the UN Charter needed to be clarified was admitted by
everyone shortly after the adoption of the Charter: the elaboration of the
Declaration was thus considered to be one of the principal tasks of the UN.
The fact that what resulted was a declaration and not a convention (the
decision was reached only after lengthy discussions) represented a compro-
mise. Moreover, this was also true of the entire Declaration as finally adopted,
for its content had to reconcile the most diverse theoretical considerations.
But it would have been difficult for it to have been otherwise. One of the
reasons for the compromise in respect of the form of the document was the
fear that the majority of States would not accept being immediately bound by
a convention, i.e. a document endorsing direct obligations to implement these
human rights in their domestic legal systems. This fear was not without
foundation.
Since the Declaration has become a recognized legal form at the UN it
constitutes, in the final analysis a document whose force is slightly greater
than that of a recommendation. It might be considered to be a document
which is not enforceable, and which has no binding power but merely a moral
value. But, as was stressed by Rene Cassin, particularly in view of Article 56
24 Imre Szabo
of the Charter wherein the States pledge to work in co-operation to achieve

respect for human rights, the legal value of the Declaration exceeds that of a
simple recommendation. It is to be noted that the American Declaration of
Rights and Duties of Man, which preceded the Universal Declaration, having
been adopted in 1948 at Bogota, and which was included in an annex to the
documents of the 9th International Conference of American States as a recom-
mendation, does not have any real legal value in international law, and cannot
be compared with the Universal Declaration. In a strict sense, the interna-
tional legal value of the Universal Declaration is the same, and yet its impor-
tance and its international role are fundamentally different.
Although some States abstained from voting on the Declaration in the
General Assembly, the Declaration has gradually come to command increas-
ing authority throughout the world, and, despite its omissions, its impor-
tance sets it at the same level as the Charter. At the very least it is considered
today to be one of the cornerstones of the United Nations structure. Some
States go so far as to refer directly to it in the preamble to their Constitu-
tions, and every international document, and even some national documents,
which are concerned with human rights unfailingly start off from the Univer-
sal Declaration or lead logically to it.
Despite all the criticisms and all the value judgments, it can be asserted
that the Declaration has been a success rarely encountered in the history of
international law.
(a). Some features of the Universal Declaration

The drafters of the Declaration have often been reproached for the absence of
a firmly established and homogeneous theoretical basis, and no doubt this
reproach is valid. The absence of such a basis reveals itself, inter alia, in the
following features:
i. In the Declaration the difference between human rights and citizens
rights is blurred, all these rights being placed together in the category of
human rights. Certain rights of the citizen which the State is obliged, by
virtue of its very existence, to guarantee are set on the same footing as rights
which derive from a conception of the world centred upon man and which,
being independent, or almost, of the State, are the products of a profoundly
individualistic philosophy.
ii. The Declaration is not satisfactorily linked to the present, or more
exactly, to the recent past. It does not refer to the phenomena which trig-
gered the indignation of everyone and does not condemn the abuse of human
rights with sufficient vigour. Nor does it bar the way to these rights being
used in a manner which would be contrary to their essentially democratic
purpose. Admittedly, Article 30 of the Declaration prohibits all acts which,
on the authority of the Declaration, are aimed at the destruction of the rights
and freedoms set forth therein, but this is a purely negative approach to the
question.
iii. This means that the Declaration does not, in the final analysis, possess
a definite political character; it does not occupy a clearly-defined position on
the scale of political values. It was intended that this should be a particular
feature of the document. Those who drafted it purposely sought to remove
anything that gave it a clear-cut character; moreover, they wished to draw
up a politically neutral document. But the basic question of the international
problem of human rights is thus raised, for it is highly questionable whether
it is possible to establish a declaration which is sound and effective without its
possessing a clearly-defined political character.
iv. Although mention is made in the Declaration of economic, social and
cultural rights, they are referred to only in passing, and they are not exam-
ined in a manner comparable to that of other rights (five articles out of the
thirty contained in the Declaration). On this account, the balance of the
Declaration is upset.
v. With the exception of a short paragraph 1 in Article 29, there is no
reference in the Declaration to the counterpart of the rights of man, namely,
the duties of man. In point of fact, the Declaration was not intended to fulfil
such a purpose. But how can the State agree to assume obligations towards
persons who, for their part, accept no obligation, no duty, in regard to the
community and the State? As things stand at present the problem of duties is
without solution in all of the fields in which we are interested, and there is no
mention of it, or virtually none, in the first documents. It seems to be true
that the relations between the State and the individual are not proportional
or symmetrical relations: it is man, the citizen, and not the State, that is
threatened. If certain rights need to be protected, they are those of the
individual in regard to the State. But what necessarily emerges as a result of
this situation is the idea of an evil, execrable, threatening State, a modern
Leviathan, and not a democratic State, careful, by virtue of its nature, to
respect human rights. In any case, the fact remains that the Declaration
virtually overlooks the problem, whereas constitutional law has for a long
time been beset by the question of the relations existing between the rights
of man and the duties of man. However, to all intents and purposes, this
problem is not dealt with in the field of international law.
(b) . Sovereignty
The problem of sovereignty is not, strictly speaking, one that is posed by the
Declaration, but at the time a fundamental question was raised, namely,
what was the relation between the international protection of human rights
and the sovereignty of States? Clearly, this is a key question in regard to the
international protection of human rights.
The problem of sovereignty had in fact been raised at the time of the
League of Nations. Since 1945, the matter has hinged upon Article 2, para-
graph 7, of the Charter, according to which nothing contained in the Charter
shall authorize any of the nations belonging to the United Nations to inter-
26 Imre Szabo
vene in matters which are essentially within the domestic jurisdiction of any
state. One of the axioms of the modern theory of the State today is still the
sovereignty of the State, both domestic and foreign. It is external sover-
eignty, exercised in the relations of States with other States and interna-
tional organizations, which affects matters relating to the international protection
of human rights.
The fact is that the recognition of human rights opens up a new area for
international law at the United Nations, in which the question of sovereignty
remains entirely open. Here, the State senses a threat on the part of the
international community and, out of principle, takes a stand against the
community. It is this fact which, both in the past and in the present, con-
tinues to underlie the lengthy discussions. In the nineteen-twenties, at the
time of the League of Nations, the theory was generally admitted that by
formally participating in an international organization, the State would limit
itself, would limit its own sovereignty, by delegating its own rights, or part
of them, to the international organization. This theory of self-limitation is
as inflexible, fantastic and false as had been the theory that the State had
originated in a contract under the terms of which the individual, just before
he becomes a member of the State, gives over part of his rights to the
community. In the present case, so the argument goes, the State, in becom-
ing a member of the international community, hands over part of its rights to
that community. This explanation is not scientifically founded. However, at
the present time, it is the only theoretical explanation which is given of the
internationally guaranteed protection of human rights.
The circumspection shown in this field by States, or at least by some
States, is perfectly understandable. They are afraid that the UN or its
organs, in order to protect human rights, might interfere in the States
domestic affairs, protected by Article 2, paragraph 7, of the Charter.
This fear is not without foundation. It cannot be denied that the world
today is divided, and that the unity of the world represented by the UN is
the unity of conflicting social systems. How often have human rights served
as a pretext for mutual attacks! How often, in fact, does the defence of
human rights serve as a pretext for systematically fomenting international
incidents!
In my opinion the solution to the problem of sovereignty should be sought
in what Rene Cassin terms the third panel of the human rights structure,
namely their implementation. For it is here that guarantees should be pro-
vided whereby all breaches of sovereignty can be prevented and methods can
be developed which reduce problems to the level of individual cases and
prevent them from being blown up into questions of principle which can be
used as a basis for large-scale attacks. In the event of a State regularly
violating human rights of a large number of individuals, other provisions of
the Charter would have to be brought to bear and other United Nations
organs would have to act.
(c). The rights included in the Declaration and the rights of the citizen
We have already observed that the rights covered by the Declaration are of a
very mixed character. What is being referred to is not merely the confusion
characterizing human rights and citizens rights. Jacques Maritain reduces
human rights to the common weal and speaks of the well-being of the great-
est number, of their at once physical and, above all, spiritual unity.16 We thus
see how far the mystification of the subjects of human rights can lead. In
the Declaration and in the conception on which it is founded, individuals who
are imagined independently of the State and those who actually exist within
the State, are mixed together, as are individual rights and collective rights.
With the creation of the category human rights, a certain wholesale
watering-down of concepts took place. For what does the concept of human
rights represent? The opposition between man and society? The indepen-
dence of man in regard to society? But is it really possible to imagine an
abstract man, situated outside society, or at least outside the State, man
considered in himself, who has only demands to make of the State? This
would appear to be a utopian view, and it must be admitted that the Declara-
tion itself is not devoid of a certain utopian and speculative character.
The question remains in no way changed. Does there exist, at the theoreti-
cal level, a relation between the rights of the citizen, in other words between
those rights which are at present guaranteed by the State, on the one hand,
and human rights on the other? Natural law immediately answers in the
affirmative since, for the champions of natural law, what are involved are
human rights regarded as an abstraction, man separate both from the State
and from the international community, in other words, from those elements
which ensure and guarantee these very rights. For natural law, the interna-
tional community and the State are but the passive objects of rights. It is
impossible for me to subscribe to this view, which is false, for it implies the
existence of rights without either object or support, floating around some-
where in space. According to the conception of natural law, then, citizens
rights and human rights are in principle identical. The absurdity of this
conception compels us to reject it out of hand.
From the angle of international positive law and constitutional law, and
more broadly, in international politics on the basis of the defacto relations
existing between the State and the international community, the question
arises today quite differently. It is the State which is the subject of the
international postulation of human rights, for it is held responsible by interna-
tional law for taking certain measures, within its own framework, on behalf
of the citizen. International law itself consequently resembles a sort of natu-
ral law and moral imperative, the rules of which are put into effect in the
context of the public law of the State, thus losing their character as postu-
lates and becoming realities. From this conception a number of conclusions
can be deduced in respect not only of the mutual relations which exist be-
28 Imre Szabo
tween the different branches of law and the situation, within the national
legal system, of a part of international law, but also of the conditions govern-
ing the existence of the international community.
But let there be no mistake. This conception by no means signifies that
human rights do not, in the last analysis, constitute, in international law,
genuine rights: a positive reality in law. It does not lend itself to the claim
that these rights exist only as needs and that, from the point of view of
human rights, international law exists only as an imperative. l7
Human rights are a well-established institution of international positive
law. They are a legal and, consequently, social reality, which means that
human rights have a direct social and legal effect. This situation raises the
question of the individuals status as a subject of the law at the international
level, which will be dealt with later. What is involved here is the interna-
tional effect of human rights, irrespective of the rights and international
duties of the State, This is a problem which is difficult at the theoretical level,
but the practical solution is even more so.
4. THE INTERNATIONAL COVENANTS ON HUMAN RIGHTS
(a). The right to self-determination

Scarcely had the Economic and Social Council set up the Commission on
Human Rights pursuant to Article 68 of the United Nations Charter, when it
appeared necessary to draw up a draft convention on human rights which
would complement the Declaration and by which States would expressly
undertake to respect the rights thus defined within the spheres of their
competence. The United Nations carried out a great deal of work to this end;
the General Assembly, together with the other UN organs, has concerned
itself with this matter on many occasions. Without wishing here to describe
the whole process, it is to be noted that in 1966 the two Covenants were
finally completed, one on economic, social and cultural rights, and the other
on civil and political rights. To the Covenant on Civil and Political Rights was
added an optional Protocol concerning the procedure to be followed regarding
complaints by individuals.
The first article of the two Covenants define, in an identical text, the right
of peoples to self-determination. By virtue of this right, peoples freely de-
termine their political status and freely pursue their economic, cultural and
social development (paragraph 1 of Article 1 of the Covenants). Lengthy
discussions preceded and accompanied the inclusion of these articles in the
Covenants. In this connection, reference was rightly made to Articles 1 and
55 of the Charter of the United Nations which allude to the right of peoples to
self-determination. The fact that the Covenants define this right more pre-
cisely and in greater detail is of great importance, even if it is true that the
United Nations had already dealt several times with the right of peoples to
self-determination in a positive manner on other occasions.
During the discussions at the General Assembly the question was raised as
to whether the right to self-determination was a legal right or, simply, a
fundamental political principle, i.e., whether this right did indeed have a
place in a convention on human rights.lg In the end it was recognized that
self-determination was indeed a human right, but it may reasonably be asked
whether, on this account, its importance was increased or decreased.
A certain apprehension must be voiced in this connection. The Covenants
deal with human rights. The right to self-determination, being without doubt
the right of an entire people or of an ethnic group, therefore constituted a
collective right which does not concern individuals separately, but the whole
of the group. In point of fact, human rights are founded on the right to
self-determination. On the other hand, the true content of the right to self-
determination, its true political importance, consists in the right to found an
independent State and to establish a political organization leading to the
creation of a State. The State actually represents the context in which human
rights are anchored and effectively achieved. Thus in actuality in the Cove-
nants, the right to create the preconditions for the implementation of human
rights is declared to be a human right. The right in question here is that of
establishing conditions from whence human rights will subsequently emerge.
One may consequently wonder whether, in the relentless search to find a
place for the right to self-determination, it was appropriate to attach that
right to human rights. More precisely, and without denying the importance
of a more accurate definition, if the need to set forth this right in the Cove-
nants can be questioned, it is because human rights of a different type are
thus brought together.
(b). One Covenant or two Covenants?

An examination of the historical background of UN debates indicates that
initially it was generally recognized that economic, social and cultural rights
were closely connected to civil and political rights, and therefore should be
covered by the same document, a single convention. This principle was effec-
tively and officially adopted by the General Assembly at its fifth session. It
stated that the enjoyment of civil and political freedoms and that of economic,
social and cultural rights are interdependent, and that in cases where the
individual is deprived of his economic, social and cultural rights, he does not
represent the human person who is considered by the Declaration to be the
ideal of the free man. In 1951, however, ECOSOC submitted a proposal to
the General Assembly that the decision taken in 1950 be revised. It was then
that the General Assembly decided to draft two conventions which would be
adopted together and be open for signature by States on the same date.
According to the decision of the Assembly, the same spirit should guide the
two conventions which should contain as many identical provisions as possible.Z
30 Imre Szabo
Thus, the organs of the UN have been greatly concerned with the problem
of the unity and division of human rights. In point of fact, the reasons put
forward in favour of two separate conventions were not substantial. It was
said that the system for implementing them should be different. According to
Article 2 of the Covenant on Economic, Social and Cultural Rights, the full
realization of the recognized rights should be achieved progressively, whereas
civil and political rights should be ensured uno actu but, in both cases, it is
indispensable for the rights to be jointly guaranteed by States. This false and
artificial distinction is made with a view to marking out a frontier between
the two categories of rights. Instead of including economic, social and cul-
tural rights in all of the human rights structure, they are by this means set
outside it, ostensibly on account of their novelty. The other reason advanced,
which is moreover in contradiction with the spirit of the decision of the
General Assembly, is no more convincing: to say that States will thereby
have greater latitude in adhering to one or the other Convention or to both at
the same time does not hold water since the General Assembly considered
them to form an interdependent pair, and so they turned out to be when the
time came for them to be ratified.
(c). Generality and un,iversality

Very early at the United Nations the idea emerged that, like the Declaration,
the Covenants should have a general character, and thus cover in principle all
fundamental human rights. Here, we must at once distinguish between gen-
erality, as a notion concerning the content and scope of human rights, and
universality, which designates the field of operation of the rights in question.
As its name indicates, the Declaration has at once a universal character
(having a universal value and being of universal effect) and a general charac-
ter; the same is true of the Covenants.
Like the Declaration, the Covenants cover all the rights of man, considered
as a social being and as an individual. They include the rights of man re-
garded as a citizen and they cover the rights of certain groups and the rights
of the individual as the member of a given group. The Covenants foreshadow
this multilateral approach to the question while seeking at the same time to
make out a relatively stable limit between the two groups of rights: it ap-
pears that in the case of economic, social and cultural rights, the subjects of
the rights are persons, whereas for civil and political rights, they are individ-
uals. The question remains as to whether, over and above words, this distinc-
tion possesses some importance, or whether, in the final analysis, it involves
notions which amount to the same thing.
It is a fact that both the Declaration and the Covenants seek to encompass
all possible and imaginable human rights. It is this which gives these instru-
ments their general character. But at the same time efforts were made at the
United Nations to gain recognition for the various rights considered sepa-
rately, and various draft conventions have already been adopted with this in
view: the Slavery Convention, the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, the Convention on the Elimination of All
Forms of Discrimination against Women, the International Convention on
the Elimination of All Forms of Racial Discrimination, the International
Convention on the Suppression and Punishment of the Crime of Apartheid,
constitute such partial conventions. Strictly speaking, the general conven-
tions already cover these partial conventions but, in view of their impor-
tance, the need was also felt to deal with these human rights separately and
to draw up special conventions to protect them.
Nowhere is there any authoritative analysis of the relations which exist
between general conventions and partial conventions on human rights. The
fact is that the general conventions cover all the partial conventions. One
example illustrates the resulting confusion, the Convention on apartheid
adopted in 1973. This Convention condemns all policies similar to apartheid
(racial discrimination, genocide, slavery) which are already condemned by
other partial conventions and resolutions. At the same time the Convention is
nothing other than the concrete expression of one element in the universal
conventions. Seen from this angle, the approach of the United Nations is
neither clear nor consistent.
Universality constitutes in itself a particular notion of international law. In
the case referred to, it represents the intention to afford all States that so
desire the opportunity to accede to a particular convention.
It is true that the partial conventions drawn up by the UN also have this
character but, in the case of the major conventions which cover all human
rights, provision is made not only for universality but also, by virtue of their
content, for the general character of the rights. In the case of the Covenants
on Human Rights, what is involved is conventions possessing universal value,
and which are consequently binding, in principle, on all countries and on all
men.
Universality corresponds to the present world situation and is even a
reflection of it. Today the universal conventions represent the extent of the
agreement achieved by the countries belonging to the various social systems
whereby they have declared the field of human rights, understood in the
broadest sense, to be a protected domain. Universality is thus equally valid
for all States that currently exist and that co-exist peaceably, whatever their
social system, assuming of course that the convention in question has been
ratified by them.
(d). The regional conventions

Two regional conventions on human rights currently exist. In the region of
the socialist countries there exists no multilateral convention at present, but
the bilateral agreements concluded between the States concerned have led to
the creation of a de facto situation characterized by a clearly-defined and
homogeneous interpretation and common practice of human rights. This is
32 Imre Szabo
particularly so in the field of culture, but also in other fields relating to social
conditions, public health, justice, etc.
The two existing regional conventions are the European Convention on
Human Rights (Rome Convention of 1950) and the American Convention on
Human Rights (San Jose, 1969). What characterizes both of them, but particu-
larly the European Convention, is that, compared with the Universal Decla-
ration and the Covenants, they include only a small group of human rights.
These Conventions do not supply any clear indications concerning the rela-
tions existing between the universal conventions and the regional conven-
tions, or what a State should do that participates in both of them. An essential
question presents itself, considering this limited content: do the regional
conventions possess any significance, as compared with the universal conven-
tions?
It will be seen later on that the regional conventions represent an effort by
the States concerned to try out new methods of realizing human rights in
practice, and that, from this point of view, they are justified. However, so far
as the list of human rights is concerned, it must be acknowledged that the
regional conventions have not introduced a single new element and have not
created a single new right; from this point of view, they are covered by the
documents possessing a universal character. It would not, of course, be un-
thinkable for a regional convention to add to the list of human rights enumer-
ated in the universal documents. However, it has been in the realization of
human rights alone that the regional conventions have gone further than the
universal conventions.
Giving the matter further thought, one arrives, moreover, at the following
fundamental thesis: human rights are, by virtue of their very nature, univer-
sal rights; only thus do they have any significance, and in their general
character, they cannot but be universal. It is not possible to imagine a region
which, in establishing protection for human rights, excluded from the list of
human rights covered by its convention a right recognized by the universal
conventions. The fundamental feature of human rights, be they established in
the framework of the United Nations or of the specialized agencies, is indeed
their universality, their validity urbi et orbi, as well as their generality, or in
other words their coverage of all human rights.
On the basis both of experience to date and of theoretical thinking, it
is justifiable to conclude that in the field of human rights a regional conven-
tion means something only if it adds a new element to the universal system
for the protection of human rights, be it at the level of rights (new con-
tent) or at that of their implementation (new procedure). If such is not the
case, the universality of human rights should be maintained and even rein-
forced, for it is this very feature which principally accounts for the moral
force of human rights, even if other elements also contribute to their legal
force.
(e). Relations between the Declaration and the Conventions

The legal nature of the Declaration and the Conventions differs substantially,
and the same is naturally true of their binding force in regard to States. It
has already been observed that the Universal Declaration has acquired a
moral authority such that it has almost become legally binding. But in reality
this is not the case. The Declaration is not binding upon States and consti-
tutes merely a statement of United Nations thinking on human rights. Ad-
mittedly, States can attribute to a declaration of this nature an importance
such that the rights included in it will have an almost binding force. States
can also include the Declaration in the preamble to their Constitutions. But
even with all that, the Declaration will not be mandatory for a given State,
since even the preamble to its own Constitution is not mandatory (this ques-
tion has given rise to a substantial number of works in the field of constitu-
tional law and also in that of the theory of lawLa This means that the Declaration
has been taken into consideration in the Constitution, and that it is respected
therein. No more can be asked of a declaration, even a universal one; even
that much is significant. As is stated elsewhere, the Universal Declaration is
more important than a simple recommendation.
(f). Conventions
Apart from the Universal Declaration, and not counting the various recom-
mendations, conventions constitute the basic form in which human rights are
established at the international level. These are multilateral instruments of
international law, and upon ratification the States concerned expressly un-
dertake to guarantee the rights included in them and to include in their
municipal law the human rights which have been formulated or, in other
words, to ensure to all inhabitants of the State concerned the enjoyment of
the human rights set forth in those conventions. On this account, and in
accordance with the system of the sources of international law, conventions
constitute the form required by international public opinion, for they explic-
itly place obligations upon States.
Another recognized source of international law is custom. According to
some authors, the Universal Declaration, as a source of law, has a value no
greater than that of custom. It is suggested, however, that the value of the
Declaration is greater than that of mere international custom.
There can be no doubt that, of these two sources of law, it is conventions
which represent clearly-defined legal obligations, for the execution or non-
execution of which States can be held directly responsible. However, the
example of human rights in fact shows that certain changes occur in the
system of the sources of international law. As an international legal institu-
tion, human rights are indeed the expression of certain situations which
represent more than mere custom, without however attaining the legal form
34 Imre Szabo
of international conventions. They become binding on the various States only

at such time as those States have ratified the conventions drawn up for that
purpose.
At the UN, as at the League of Nations, although to a lesser degree, a
procedure was introduced according to which conventions on human rights
have to be voted on by the General Assembly. These rights consequently
cease to be, to a certain extent, mere custom, which was perhaps their status
until their acceptance; they then pass into the realm of international positive
law. The vote at the General Assembly still has to be followed by the signing
of the convention by the State, then by the ratification procedure in the
framework of that same State. The convention thus acquires its full interna-
tional legal value. And yet it cannot be said, and it is precisely this that is new
in international practice, particularly regarding human rights, that the vari-
ous phases of the process, the vote and signature, have no significance, and
that the convention voted at the UN remains a mere custom up until the time
that it is ratified.
In actual fact, the accession of human rights to the level of international
law is effected by a process in the course of which human rights gradually
acquire international standing and are progressively transformed into inter-
national positive law. It is not appropriate to deal here with the repercus-
sions of this process on the system of the sources of international law in
general or to raise the question as to whether or not it affects, and in what
way, other fields of law.
In any event, in the framework of the United Nations, the conventions on
human rights are instruments on the basis of which it is possible to compel
States to meet the obligations which they contain and to accept the responsibil-
ity when they are not carried out. But one cannot disregard the process
whereby they are transformed into positive law, a process in the course of
which human rights, which had previously belonged to customary or unwrit-
ten law, pass into written international positive law, and thus become bind-
ing on States who then have to take domestic measures. This last aspect of
the question shall now be examined.
5. THE IMPLEMENTATION OF HUMAN RIGHTS
(a). The United Nations system

Contrary to the Declaration and to recommendations, which are almost equiva-
lent to it from the legal point of view, States undertake, by ratifying conven-
tions on human rights to: respect the clauses they contain; take adequate
measures to maintain or establish a state of affairs postulated by the conven-
tions; and provide for a particular system of appeal for the benefit of citizens.
These general terms are formulated in detail by the Covenants which, at the
same time, prohibit all forms of discrimination among human beings.
What means does the UN have at its disposal to induce States to meet the
obligations which they assume when they ratify a convention? A convention,
it should be remembered establishes a relationship between the State and the
international community, which concerns the individual. But what is impor-
tant here is the obligation assumed by the State. The State has obligations by
virtue of the fact that it is a member of the UN and has accepted of its own
accord to respect human rights by submitting to the authority of certain
organs of the UN. The Covenants and conventions deal specifically only with
cases in which States fail to fulfil their obligations or act in a manner which is
inconsistent with the obligations which they contracted under the terms of
the conventions. For such cases a procedure has been established which
might be said largely to constitute a game that is played within the UN. In
Rene Cassins opinion, this is the weakest point of the human rights system
established by the UN. States are in fact obliged to submit from time to time
(generally each year) a report to the competent UN organ: the Commission
on Human Rights, or to a committee specially set up for that purpose (see,
for instance, the 1966 Covenant on Civil and Political Rights). In its turn, the
organ addresses a report to the higher bodies or to the Secretary-General, or
perhaps directly to the General Assembly. In expressing its opinion, the
General Assembly may approve or formulate reservations or recommenda-
tions. In my view, this system is too rigid and encumbered by red tape, which
makes the matter lose much of its interest in the course of the procedure.
Two principles of international law stand in the way of the UNs working
out a more flexible and more effective system for the international protection
of human rights: the principle of State sovereignty and the exclusion of the
individual as a subject of international law or, more accurately, the fact that
in international law only the State can be a subject of the law. When W.J.
Ganshof van der Meersch wrote that, with human rights, international law
annexed part of constitutional law, which consequently ceased to be the
monopoly of municipal law, 26he was probably right from the point of view of
substantive law. But constitutional law possesses completely different ma-
chinery for legal protection which allows individual grievances to be formu-
lated in the framework of the State, at a level, it is true, which is never the
highest level in the State. In the UN human rights system, States give up
their sovereignty only insofar as they are obliged to submit a report to the
international organization. Apart from this, and not without reason, they
vigorously defend their sovereignty against intervention by other States,
effected sometimes through the intermediary of the UN. Furthermore, in
this system the substantive discussion concerning the alleged violation of
human rights before a particular organ of the UN (the Commission on Human
Rights, for instance) is initiated on the basis of a complaint by another State
and, consequently, the accused State has to defend itself not so much against
the charge levelled at it, but rather against the other State. Even if my
judgment seems severe, it has to be admitted that the UN has proved to be
36 Imre Szabo
incapable of loosening the stranglehold of sovereignty, even with the help of

human rights, although it was just these rights that represented an area of
international concern par excellence, calling for certain interventionist
measures.
The UN does however possess a means, the only one it must be said,
whereby it can disregard the second limiting principle of not recognizing the
individual as a subject of international law. Thus, at the present time only
States have the possibility of addressing a complaint or a request to the UN,
and this holds true more particularly for human rights since it is not consid-
ered to be wise for a State to authorize its own citizens to lodge a complaint
with the UN against it, for such procedure would probably be devoid of all
objectivity.7 It is not in the general conventions but in the convention on
genocide, and later in the convention on apartheid that the United Nations
has recognized the individual as a subject of international law. In both these
cases, genocide and the policy of apartheid are described as international
crimes. By these conventions, States undertake either to summon those
responsible for such acts before their own tribunals or to accept the jurisdic-
tion of the international tribunal. At the same time, they undertake not to
allow such criminal acts to be shielded from national or international penal
justice on the plea that they constitute political crimes. This, the most
stringent procedure ever adopted by the UN, applies only in two cases.
However, it has yet to be applied, and it is doubtful whether it will be put
into effect because States may not be prepared to yield to such international
pressure. It will perhaps be necessary for an entirely new line of approach to
appear in the development of international criminal law for the provisions of
these Conventions to become effective.
It might thus be said that the UN arsenal contains both the meekest
weapon and the most severe one. An instrument of common law which will
lend itself to general use has not yet been discovered. It is, however, in this
direction that both the UN and the various States should progress.
(b). The system of regional conventions

The leading innovation introduced by the regional conventions relates to the
implementation of human rights. It is here that we find a significance, if there
is one, in the concluding of such regional conventions.
This innovation consists in the individual being recognized as a subject of
international law, in other words, in the possibility for the individual to lodge
a complaint with a regional commission on human rights in the event that his
human rights are violated. But it must be stressed at once that at present
this possibility is hedged in with a whole series of guarantees under which the
State concerned is very well protected. For the individual must first of all
have exhausted all the national procedures of appeal available, and it is only
then that he is afforded the possibility of having recourse to an international
organ for the purpose of notifying it that a particular right, which concerns
him directly, has been violated. In general he cannot apply to the interna-
tional organ for the purpose of notifying it that a particular violation, which
does not concern him directly, has occurred. Moreover, before the interna-
tional organ, the procedure takes place in two phases: first the commission
considers whether the complaint is admissible, and it is only if it is so judged
that it examines the merits of the case.
The result of this is that the European Commission declares scarcely one
per cent of individual complaints to be admissible.s Thus, it might seem from
the outside that while a new and admirable procedure has been made avail-
able here for the international protection of human rights, this procedure is in
fact impracticable. On the basis of the complaint, the European Commission
can itself take certain measures. It can oblige the accused State to take the
necessary steps, or it can apply to either the Committee of Ministers of the
Council of Europe or to the European Court of Human Rights, as the su-
preme judicial body, before which only States and the Commission can insti-
tute proceedings. Here, too, what is impressive is the external aspect, far
more than the protection that these institutions actually provide. In my
opinion, the Council of Europe can show at most one or two examples of ways
in which human rights can be interpreted and protected, but it does not
provide them with effective protection. It cannot be claimed that human
rights have been violated only in the small number of cases in which the
Strasbourg organization has really acted. One is therefore inclined to speak
rather of the effect produced by the possibility of such a procedure on the
conduct of States, and generally speaking, on the self-limiting power of that
procedure.
Whatever the case, what is involved here is a procedure to which thought
had also been given at the UN. For the Optional Protocol to the 1966 Cove-
nant on Civil and Political Rights provides for the introduction of the same
system in the United Nations. It grants to the Committee established by the
Covenant the right to receive and consider individual complaints; the Commit-
tee has to submit its conclusions to the State concerned and include that
States reply in its report. It is true that the optional Protocol has not been
adopted by many States, for they have confirmed themselves to ratifying the
two Covenants. The procedure provided thus remains a possibility which will
probably not be used often, although it makes for a fairly moderate solution
and one which cannot but have a certain importance at the level of principle.
A certain contradiction exists between the basic conception of the Euro-
pean Convention on Human Rights and its implementation. As conceived,
the Convention is aimed at establishing a system of collective protection for
human rights but the means for putting it into effect and, primarily, the
new means constituted by individual complaints, are typical non-collective.
The fact nevertheless remains that the European Convention should be con-
sidered in the field of human rights as an attempt to provide for the partial
recognition of the individual in international law.
38 Imre Szabo
The fact is that a stable and lasting system designed to protect human
rights has not yet emerged at the United Nations. In this connection, it can
be neither forgotten nor denied that the very basis of the existence of the UN
is the simultaneous presence of countries belonging to different social sys-
tems. Now whereas one of the groups of countries avails itself, as a general
rule, of the system of human rights established by the UN to seek to identify
injustices perpetrated against individuals in the established order of a State
belonging to the other social system, the position adopted by the other group
has been characterized by a collective interpretation of human rights which
neither recognizes nor admits of intervention in a States domestic affairs,
nor even the mere adoption of a position by the UN, except in cases where
the particular situation, for instance that of a minority, endangers peace and
international security. Reciprocal caution in the face of possible provocation
hinders the establishment, within the UN, of a system ensuring the effective
protection of human rights.
Conclusion
With the introduction of the international protection of human rights there
appeared an institution of international law capable of becoming the basis and
the framework for the full development of mans personality, respect for his
standing as a human being and the equality of citizens before the law within
the various States.
The central idea of human rights, and of the citizens rights which preceded
them in the history of law, is equality before the law; in other words, the
equality of citizens which, even if only a matter of form, nonetheless exer-
cises certain effects. This equality of citizens before the law, which subse-
quently became, with human rights, the universal equality of all, constitutes
the central institution of human rights. In its negative form it signifies the
absolute prohibition of every kind of discrimination. This idea is already
contained in the Charter of the United Nations. It now finds its way into all
general or partial documents relating to human rights in that virtually all
reiterate the prohibition against discrimination and define, where need be,
the grounds for such prohibition. Such is the fundamental idea which domi-
nates the entire human rights structure: a leading place is given to the equal
prohibition against discrimination and this is followed by a prohibition against
concrete forms of discrimination. It is understandable that, by virtue of its
importance among human rights, equality is regarded as a virtue to be pro-
tected before any other. We thus come back to our starting point: it is only
when the social conditions pertaining to general equality become a reality
that the very idea of human rights as a social institution can arise.
At the present time the fundamental right of man is no longer so much an
absolute freedom allowing for the creation of a specific field of action, free
from all unwarrantable interference, but rather the equality of man which, in
the past, however, was regarded as a political right. This is the consequence
--_.---- --_*-- ~ ,..__

_._..._.._..
_.. --... -..-__. -
of an individualism being, to a certain extent, superseded at the social level,

and of the development of society and the concept of man. Within the State it
may be individual freedoms which remain the dominant rights (although in
the socialist countries such is certainly not the case) but, in the international
sphere of human rights, this predominance is tantamount to the idea of
equality. In the last analysis, recourse is had to this idea everywhere; this is
also the idea on which the international legal institution of human rights is
founded.
The importance of human rights is such that it can truly be asserted that,
with their emergence and with the first steps taken to realize them, human
society took a qualitative leap forward. In any event, human rights represent
a new element in the development of mankind, and in the life of human
society, for they signify the end of a period and the beginning of a new era in
international relations.
It is not surprising that, in view of the relative unity of our divided world,
human rights law, which could be the foundation of the contemporary interna-
tional community, is unable to develop sufficiently. This relative unity is to be
seen not so much at the level of the very concept of human rights and their
definition but at the level of implementation. The view can be held that even
in the present world, which is characterized by the co-existence of mutually
opposing social systems, it is nevertheless possible to develop an homoge-
neous and more effective system for the implementation of human rights at
the international level. Such should be our ambition.
NOTES
1. Sophocles: Antigone, The unwritten, unchanging laws of the gods.
2. Ulpian, D.l.l.l., p. 3.
3. Gaius, D.l.1.g.
4. Aristotle: Politics, Book One.
5. H. Grotius: De belli ac pa&, Liber I, Caput 1.4.
6. T. Hobbes: Leviathan, Chapter 14.
7. A.V. Dicey: Introduction to the study of the law of the Constitution. 9th edition,
Chapter 4. p. 200, Note. 1.
8. John Locke: Epistola de Tolerentia. Omnia illi tam humanitatis quam civitatis jura
sancte conservanda, Sed maxime cavere debent magistratus, ne civili utilitatis praetextu
ad opprimendem alicujus libertatum abutantur.
9. . die grossere Ubereinstimmung der Verfassung mit Rechtsprinzipien versteht,
als nach welchem zu strefen uns die Vernunft einen Kategorischen Imperativ verbindlich
macht. Kant: Metaphysik der Sitten, Kirch, 1870. Rechtslehre, II. Teil, Das offentliche
Recht, pp. 49, 157.
10. Marx-Engels: Werke, Berlin, 1957, pp. 347-377.
11. W.J. Ganshof van der Meersch: Organisations europ6ennes, Vol. 1, Sirey, Paris,
1966, p. 255.
12. Cf. I. Szabo: A kulturalisjogok (Cultural rights), Budapest, 1973, pp. 85 et seq.
13. A. Verdoodt: Naissance et signfication de la Declaration universelle des droits de
lhomme, Louvain, Paris, 1963, pp. 41-43.
40 Imre Szabo
14. G.A. res. 423 (v) of 4 December 1950.

15. Rene Cassin: La Declaration universelle et la mise en oeuvre des droits de lhomme,
R&WI, Vol. 2, p. 293.
16. Jacques Maritain: Les droits de lhomme et la loi naturelle, Paris, 1947, p. 14.
17. To show how vague this theory is in respect of the relations existing between the
State and international law, I refer the reader to the work of the outstanding international
jurist, Philip Jessup. On page 90 we read: It is inherent in the concept of fundamental
rights of man that these rights inhere in the individual and are not derived from the State.
On page 92 we find: The human rights to be defined and protected must be considered not
in a vacuum of theory, but in terms of the constitutions and laws and practices of more than
seventy states. Cf. P. Jessup: A Modern Law of Nations, New York, 1949. But, in this
case, is the State included in the concept of human rights? Are human rights rights which
depend on the State, and solely on the State, or are they not?
18. See UN dot. A/2929 (1955), chap. IV.
19. See also below, Chapter 4, Section 1.
20. UN dot. A/2929 (19551,chap. I.
21. G.A. res. 543 (vi).
22. Ibid.
23. See below, chaps. 15-21.
24. Cf. C. Varga: The preamble: A question of jurisprudence, Acta Izwidica, Tomus
XIII Fast. 1-2, Budapest, 1971.
25. See below, chap. 10.
26. Cf. above, note 11.
27. Editors note: since this chapter was written the Optional Protocol to the Interna-
tional Covenant on Civil and Political Rights has entered into force and, as of January 1982,
28 States have ratified it, thereby giving their citizens the right of individual petition to the
UN Human Rights Committee. Cf. also the UNESCO complaints procedure described in
Chapter 13 below.
28. For a more detailed analysis, see below, chap. 16, section 1.
29. See below, chap. 16, section 2.
30. Cf. W. J. Ganshof van der Meersch, n. 11 above, p. 259.
Part I
Principles and Norms of
Human Rights
3 Distinguishing Criteria of
Human Rights
Theodoor C. van Boven
1. FUNDAMENTAL HUMAN RIGHTS-OTHER HUMAN RIGHTS

There is certainly a risk in classifying human rights on the basis of their
relative weight or importance. Through the ages and depending on the vari-
ous cultures and regions, the fundamental nature of certain rights has been a
matter of different appreciation and evaluation. The right to property is a
case in point. Whereas this right was considered inviolable in historic state-
ments, there has more recently been a strong and growing tendency to make
it subject to the requirements of the general welfare of society. Differences of
opinion regarding the concept and the nature of the right to property even
resulted in its omission from the International Covenants on Human Rights,
although it was included in the Universal Declaration of Human Rights (Arti-
cle 17). Those favouring its inclusion in the Covenants contended that to
omit it might create the impression that it was not a fundamental human
right.
There is another argument against making a distinction between funda-
mental human rights and other human rights. Such a distinction might imply
that there is a hierarchy between various human rights according to their
fundamental character. However, in modern human rights thinking the indivisi-
bility of human rights and fundamental freedoms is prevalent. This idea of
indivisibility presupposes that human rights form, so to speak, a single pack-
age and that they cannot rank one above the other on a hierarchical scale.
This may all be true, but there still remain weighty arguments which
militate in favour of distinguishing fundamental human rights from other
human rights. Such fundamental rights can also be called elementary rights
or supra-positive rights, i.e. rights whose validity is not dependent on their
acceptance by the subjects of law but which are at the foundation of the
international community. It would seem that the United Nations Charter
recognizes this concept inasmuch as, in its preamble, the peoples of the
United Nations are determined to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person. etc. This reaffirmation
44 Theodoor C. van Boven
cannot but refer to fundamental human rights norms which were already part
of the law of the international community as constituted at that time.
Although it is more appropriate to analyze present human rights law in
order to indicate what human rights might be considered as fundamental, it is
nevertheless of interest to draw upon historical sources in order to place the
Charters reaffirmation of faith in fundamental human rights in proper per-
spective. Reference may be made in this connection to the minimum standard
rules of treatment of aliens,4 as well as to the theory of humanitarian inter-
vention which considered large-scale violation of very elementary rights under
certain conditions a legitimate ground for armed intervention. At the begin-
ning of this century, an authoritative writer called these very elementary
rights, whose violation might justify humanitarian intervention, droits
humains. He included in this category: droit a la vie, droit a la liberte
(physique et morale) et droit a la legalite.
Under the League of Nations system for the international protection of
minorities, respect for certain essential human rights was provided for in the
minorities treaties and declarations, not only for the benefit of minority
elements, but for all the inhabitants of the countries concerned. Among these
essential rights were the right to life and liberty and freedom of religion and
conscience.j Whereas these rights were guaranteed to all inhabitants, other
rights such as the right to equality before the law, the enjoyment of other
civil and political rights without discrimination, and special rights regarding
the use of language and the establishment and maintenance of religions,
charitable and social institutions were accorded to smaller circles of persons
such as nationals or members of racial, linguistic or religious minorities. In
fact, it would seem that the minorities system, though a human rights obliga-
tion for a limited number of States only, was again one of the constituent
elements at the basis of the human rights reaffirmation of the UN Charter.
If the foregoing might justify the tentative conclusion that the community
of nations as constituted at the end of the Second World War was at least
bound by some supra-positive human rights norms, such as the right to life,
the right to liberty and freedom of conscience and religion, it should never-
theless be emphasized that the content, the value and the weight of these
fundamental human rights norms are in a constant process of development.
Even the right to life, the most elementary of all human rights, is subject to
changing opinions on the beginning and the end of life. Another cogent exam-
ple of this process of development is the upgrading of the principle of
non-discrimination,7 notably racial non-discrimination, on the hierarchical scale
of human rights norms, in so far as there is any such scale.
It is fair to say that in the practice and activities of the United Nations no
human rights principle has received such a prominent position as the elimina-
tion of racism and racial discrimination. Machinery has been established (Spe-
cial Committee on Apartheid, Ad Hoc Working Group of Experts, Commit-
tee on the Elimination of Racial Discrimination), campaigns launched (Decade
-- -.--
-.-__.l.-l~.---- -.- ---
.-_- _... -.--- -----.
Distinguishing Criteria of Human Rights 45
of Action to Combat Racism and Racial Discrimination) and, last but not
least, norms elaborated (Declaration and Convention on the Elimination of
All Forms of Racial Discrimination, Convention on the Suppression and Pun-
ishment of the Crime of Apartheid) which go, in their purport and nature,
beyond other action (and inaction) of the United Nations in the field of human
rights. The intensity of the prevailing sentiments against racism and racial
discrimination, the awareness of urgency and the political climate have made
the principle of racial non-discrimination one of the foundations of the inter-
national community as represented in the UN. Members of this community
are bound by this principle on the basis of the UN Charter, even if they do
not adhere to the various international instruments specifically aimed at the
elimination of racial discrimination and apartheid. This view was notably
expressed by the International Court of Justice in its 1971 Advisory Opinion
on the Legal Consequences for States of the Continued Presence of South
Africa in Namibia.s
There is also a great deal of law in humanitarian conventions and in inter-
national human rights instruments supporting the existence of very funda-
mental human rights. This is that part of human rights law which does not
permit any derogation even in time of armed conflict or in other public emer-
gency situations threatening the life of the nation. The common article 3 of
the four Geneva Conventions of 1949, setting out a number of minimum
humanitarian standards which are to be respected in cases of conflict which
are not of an international character, enumerates certain acts which are and
shall remain prohibited at any time and in any place whatsoever. The follow-
ing acts are mentioned: (a) violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading
treatment; (d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as indispensable by
civilized nations. The universal validity of these fundamental prescriptions
is underlined by the words at any time and in any place whatsoever in this
common article 3 of the four 1949 Geneva Conventions.
The International Covenant on Civil and Political Rights enumerates in
article 4, para. 2, the rights from which no derogation is allowed in time of
public emergency,Y viz. the right to life (article 6), the right not to be sub-
jected to torture or to cruel, inhuman or degrading treatment or punishment
(article 7), the right not to be held in slavery or servitude (article 8, paras. 1
and 2), the right not to be imprisoned merely on the ground of inability to
fulfil a contractual obligation (article ll), the prohibition of retroactive appli-
cation of criminal law (article 15), the right to recognition everywhere as a
person before the law (article 16) and the right to freedom of thought, con-
science and religion (article 18). Regional human rights conventions contain a
similar clause enumerating provisions from which no derogation may be made.
The fact that in a number of comprehensive human rights instruments at the

worldwide and the regional level, certain rights are specifically safeguarded
and are intended to retain their full strength and validity notably in serious
emergency situations, is a strong argument in favour of the contention that
there is at least a minimum catalogue of fundamental or elementary human
rights.
Other arguments can also be used to support this contention. It was stated
above that in the present theory and practice of the United Nations the
principle of racial non-discrimination is a fundamental principle of the world
organization. Similarly, other international organizations have come to rec-
ognize that certain human rights values are of such fundamental significance
in relation to the work and purposes of those organizations that they have
developed special procedures or established special machinery in order to
promote or to protect these fundamental human rights values, even in the
absence of conventional obligations. A case in point is the special procedure of
the International Labour Organisation relating to Freedom of Association.
This procedure, in which the IL0 Governing Body Committee on Freedom of
Association plays a central role, may be invoked even against States which
are not formally bound by the IL0 conventions on freedom of association
(Nos. 87 and 98). Against the objection that obligations of Member States
derive solely from ratified conventions and accepted recommendations, the
Governing Body Committee argued, inter ah, that the principle of freedom
of association is among the aims of the ILO, as mentioned in the preamble to
its Constitution. Moreover, the Declaration of Philadelphia relating to the
aims and objectives of the ILO, which is an integral part of the Constitution,
reaffirms the importance of freedom of expression and of association, etc.
In other words, freedom of association is a constitutional principle of the IL0
and as such must be respected by the whole membership of the Organization.
For this reason the basic concepts of the freedom of association conventions
have to be considered in direct relationship with the Constitution.of the ILO,
including the Declaration of Philadelphia in particular, and are therefore
fundamental principles of the Organization and binding upon its members.
Another example, taken from the practice of the Organization of American
States, and in particular the Inter-American Commission on Human Rights,
militates in favour of singling out certain human rights of a fundamental
nature. The Second Special Inter-American Conference (Rio de Janeiro,
1965) requested the Commission to give particular attention to observance of
the following human rights embodied in the American Declaration of the
Rights and Duties of Man: the right to life, liberty and personal security
(Article I); the right to equality before the law (Article II); the right to
religious freedom and worship (Article III); the right to freedom of
investigation, opinion, expression and dissemination (Article IV); the right to
a fair trial (Article XVIII); the right to protection from arbitrary arrest
(Article XXV); and the right to due process of law (Article XXVI). The
Commission established a special procedure for the handling of the

communications charging the violation of any of the above-mentioned
rights. These rights were apparently considered of such fundamental
importance, that they justified special attention by the Inter-American
Commission on Human Rights as well as special powers and procedures in
case of their alleged violation.
The character of some humanitarian norms may also be deduced from
international penal law and from the rapidly developing law in relation to the
question of the violation of human rights and fundamental freedoms in any
part of the world, with particular reference to colonial and other dependent
countries and territories. l3 The Convention on the Prevention and
Punishment of the Crime of Genocide provides the most forceful indication of
fundamental norms which are to be considered as supra-positive. This was
confirmed by the International Court of Justice when it said that the
principles underlying the Convention are principles which are recognized by
civilized nations as binding on States, even without any conventional
obligation. 14 Furthermore, attention should be drawn to the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity. This Convention aims at affirming in international law the
principle that there is no period of limitation for war crimes and crimes
against humanity. It too conveys the idea that certain norms are so basic to
humanity and to the international community that grave infringements of
these norms, by contrast with infringements of other humanitarian norms, in
no way lose their criminal character through the passage of time.
Finally, it is submitted that the UN Commission on Human Rights and its
Sub-Commission on Prevention of Discrimination and Protection of
Minorities have obtained since 1967 a mandate relating to violations of human
rights that reflect not only upon the quantity of the violations but also upon
the moral quality of the rights. In its resolution 1235 (XLII) of 6 June 1967,
the Economic and Social Council authorized the Commission and the
Sub-Commission to examine information relevant to gross violations of
human rights and fundamental freedoms, as exemplified by the policy of
apartheid as practised in the Republic of South Africa and in the Territory of
South West Africa. , and to racial discrimination as practised notably in
Southern Rhodesia, contained in the communications listed by the
Secretary-General pursuant to Economic and Social Council resolution 728 F
(XXVIII) of 30 July 1959. Furthermore, ECOSOC resolution 1503 (XLVIII)
of 27 May 1970, contains a detailed procedure for dealing with
communications relating to violations of human rights and fundamental
freedoms, especially in so far as those communications indicate the existence
of particular situations which appear to reveal a consistent pattern of gross
and reliably attested violations of human rights requiring consideration by
the Commission. It would seem that the powers of the Commission and its
Sub-Commission in the matters of violations of human rights not only relate
to the massive character of the violations, but also to the intensity and to the
fundamental nature of the human rights norms involved. At least the policy
of apartheid and racial discrimination in Southern Africa, explicitly
mentioned as an example in ECOSOC resolution 1235 (XLII), provides some
necessary guidance on the consistent pattern or massive character of the
violations and on the fundamental nature of the human rights values at stake.
In the foregoing much has been said about fundamental human rights and
every little about other human rights. This approach finds its explanation
in the fact that this chapter deals with distinguishing criteria for fundamental
human rights as distinct from other human rights recognized in national
and international law. In conclusion, it might be useful to recapitulate some
of the characteristics of fundamental human rights. These rights lie at the
foundation of the international community as presently represented in the
United Nations and, in a more limited sense, in other important worldwide
and regional organizations. The membership of these organizations is bound
to respect these fundamental rights and the international organizations are
entitled to take action where there exists prima facie evidence of serious
violations of these rights. These fundamental rights have a supra-positive
character inasmuch they are binding on States, even in the absence of any
conventional obligation or of any express acceptance of comment.
Furthermore, such fundamental rights are considered to be valid under all
circumstances, irrespective of time and place, and no derogation is allowed.
2. CIVIL AND POLITICAL RIGHTS; ECONOMIC, SOCIAL AND

CULTURAL RIGHTS
Recent international instruments relating to the general promotion and
protection of human rights contain either a comprehensive enumeration of
civil and political rights together with economic, social and cultural rights, or
deal separately with civil and political rights on the one hand and economic,
social and cultural rights on the other. The Universal Declaration of Human
Rights and the American Declaration of the Rights and Duties of Man are
examples of the former type of instrument,15 while the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the European convention on Human
Rights and the European Social Charter, as is evident from their respective
titles, adopt the approach of two separate and distinct catalogues of rights.
Among the civil and political rights there are first of all the rights designed
to protect the liberty, security and physical and spiritual integrity of the
human person. Such rights are: the right to life; the right not to be subjected
to torture or to cruel, inhuman or degrading treatment or punishment; the
right not to be held in slavery or servitude; the right to liberty and security of
person, including the right to a fair trial; the right to privacy, home and
correspondence; and the right to freedom of thought, conscience and religion.
Political rights include: the right to freedom of opinion and expression; the
Distinguishing Criteria of Human Rights
right to freedom of assembly and of association; the right to take part in the
conduct of public affairs, including the right to vote and to be elected. The
economic, social and cultural rights include: the right to work, including the
right to just and favourable conditions of work; trade-union rights; the right
to social security; the right to adequate food, clothing and housing; the right
to an adequate standard of living; the right to health; the right to education;
and rights relating to culture and science.
The concept of human rights is very much the product of history and of
human civilisation and as such is subject to evolution and change. In fact, the
development of human rights has gone through various stages17 and the
concept of human rights started off as a political concept, i.e. it meant respect
for a sphere of freedom of the human person from the State. In other words,
the State was bound not to intervene in this sphere of civil rights or
freedom rights or, as was stated in the previous paragraph, the rights
which attempt to protect the liberty, the security and the physical and
spiritual integrity of the human person. These rights are by and large of an
individualistic character. In the next stage man is not placed in opposition to
the State but he is the person who takes part in the political structuring of
society of which he is a member. This is done through the exercise of political
rights within the State. Finally, the emergence of the idea of economic, social
and cultural rights as a distinct group of rights is a more recent phenomenon.
These rights are to be realized through or by means of the State. In this
concept the State acts as the promoter and protector of economic and social
well-being. Whereas in earlier stages the State was mainly an authority for
the protection and maintenance of public order and security of society, the
modern State is (or should be) an instrument for the benefit of all persons
within its jurisdiction in order to enable them to develop to the maximum
their faculties, individually and collectively. The role of the State in the
matter of human rights has changed considerably, and it should be realized
that the enlarged function of the State is not only relevant in relation to social
rights but also with respect to the whole field of human rights, insofar as the
public authorities have also the duty to guarantee civil and political rights
against intrusions by power elements which may have large economic,
technological and scientific potentials at their disposal. It is sometimes
contended that in view of this changed function of the State with respect to
the promotion and protection of human rights, the difference between social
rights and civil rights is in the process of disappearing. This may very well
be true, but it should also be emphasized that in matters of human rights the
main focus should not be the function of the State but rather the human
existence and human personality on the individual and collective level. The
indivisibility or the unity of the human person in the physical, intellectual and
spiritual sense might be a more solid basis for approaching the question of the
interconnection between civil and political rights, and economic, social and
cultural rights.
During the early period of the drafting of the International Covenants on
Human Rights there was much discussion as to whether there should be one
or two covenants. The arguments put forward in favour of either solution
reflect clearly the various opinions regarding civil and political rights and
their relation to economic, social, and cultural rights and vice-versa. These
arguments, which will be noted below can be found in the Annotations
prepared by the Secretary-General of the UN on the text of the draft
International Covenants on Human Rightss Those who were in favour of
drafting a single covenant maintained that human rights could not be clearly
divided into different categories, nor could they be so classified as to
represent a hierarchy of values. All rights should be promoted and protected
at the same time. Without economic, social and cultural rights, civil and
political rights might be purely nominal in character; without civil and
political rights, economic, social and cultural rights could not be long
ensured.
However, those who favoured the drafting of two separate instruments
argued that civil and political rights were enforceable, or justiciable, and
immediately applicable, while economic, social and cultural rights were to be
progressively implemented. They contended that, generally speaking, civil
and political rights were rights of the individual against the State, that is,
against unlawful and unjust action of the State, while economic, social and
cultural rights were rights which the State would have to take positive action
to promote. Those who stressed the difference between the two categories of
rights also drew the attention to the fact that civil and political rights, being
legal rights, required different means and methods of implementation
(namely through complaints procedures) than economic, social and cultural
rights, which were programme rights and could best be implemented
through a system of periodic reports.
Although it was finally decided to have two separate covenants, there was
wide agreement on the pronouncement in General Assembly resolution 421
(V), and reaffirmed in resolution 543 (VI), that the enjoyment of civil and
political freedoms and of economic, social and cultural rights are
interconnected and interdependent and that when deprived of economic,
social and cultural rights man does not represent the human person whom the
Universal Declaration regards as the ideal of the free man. It should be
noted that the third preambular paragraphs of both Covenants reflect this
ideal of the free man in the light of the interconnection and interdependence
of both groups of rights. As the Annotations of the Secretary-General point
out, these paragraphs were intended to underline the unity of the two
covenants while, at the same time, maintaining the distinctive character of
each. ly In recent yea rs more emphasis has been laid on the unity than on the
distinctive character of civil rights and social rights. It has been pointed
out that the UN Charter denotes a global concept of human rights and places
the promotion of universal respect for, and observance of, human rights and
fundamental freedoms in the context of international economic and social
co-operation (article 55) and in relation to the purpose of achieving

international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character (article 1, para. 3). The idea of
unity also finds clear expression in article 13 of the Proclamation of
Teheran,21 the terms of which were specifically endorsed by the UN General
Assembly in 1977. In its resolution 321130 the Assembly decided that the
approach to the future work within the UN system with respect to human
rights questions should take into account the following concepts: (a) All
human rights and fundamental freedoms are indivisible and interdependent;
equal attention and urgent consideration should be given to the
implementation, promotion and protection of both civil and political, and
economic, social and cultural rights; (b) The full realization of civil and
political rights without the enjoyment of economic, social and cultural rights
is impossible; the achievement of lasting progress in the implementation of
human rights is dependent upon sound and effective national and
international policies of economic and social development, as recognized by
the Proclamation of Teheran of 1968;.
In spite of this trend emphasizing the idea of unity, the International
Covenants on Human Rights as well as the European Convention on Human
Rights and the European Social Charter-all these international instruments
representing to a large extent Western human rights thinking-underline
the different character of both categories of rights as far as the general
obligations of States are concerned. While under the Covenant on Civil and
Political Rights each State Party undertakes, in accordance with the concept
of legal rights or directly enforceable rights, from the time of ratification or
accession, to respect and to ensure to all individuals within its territory and
under its jurisdiction the rights recognized in that Covenant, the States
Parties to the Covenant on Economic, Social and Cultural Rights, in accor-
dance with the concept of programme rights, undertake to take steps to the
maximum of their available resources with a view to achieving progressively
the full realization of the rights recognized in that Covenant (article 2, para.
1, of both Covenants). The aforementioned regional European instruments
also make a distinction between human rights of immediate application and
human rights of a promotional nature, and consequently the Contracting
Parties are obliged under the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined and under the Social Charter
to accept as the aim of their policy, to be pursued by all appropriate means
the attainment of conditions in which the following rights and principles may
be effectively realized. It would indeed seem that a great deal of authorita-
tive opinion endorses the idea that, on the basis of the relevant international
instruments, economic, social and cultural rights are rights of progressive
realization and civil and political rights are to be respected and guaranteed as
an immediate obligation.22
The distinction on the basis of the notion of immediacy with regard to civil
rights and of progressiveness in relation to social rights cannot be taken

too categorically. First of all, the implementation approach of the Covenant
on Civil and Political Rights at the national and international levels assumes
the possibility of progressive realization of those rights. Article 2, para. 2,
introduces on the national level a certain degree of elasticity to the
obligations imposed on the States by the covenant, since all States would not
be in a position immediately to take the necessary legislative or other
measures for the implementation of its provisions.23 The same idea is an
underlying element of the international implementation system of the
Covenant on Civil and Political Rights inasmuch as reporting is the only
obligatory means of implementation, and States Parties undertake,
according to article 40, to report inter alia on the progress (again the notion
of progressiveness) made in the enjoyment of the rights recognized in the
Covenant.
Apart from these general indications which tend to blur the dividing line
between civil rights and social rights, a number of rights included in each
of the International Covenants can be classified as falling outside the proper
scope of each covenant. Article 23, para. 4, of the Covenant on Civil and
Political Rights, which provides that States Parties shall take appropriate
steps to ensure equality of rights and responsibilities of spouses to marriage,
during marriage and at its dissolution, and article 24, para. 1, under which
every child shall have the right to measures of protection on the part of his
family, society and the State, are promotional provisions rather than rules of
immediate application.24 On the other hand, the Covenant on Economic,
Social and Cultural Rights contains a good many provisions that are capable
of immediate application. Among these can be mentioned the right to form
and join trade unions, including the right to strike (article 8, para l), the rule
that marriage must be entered into with the free consent of the intending
spouses (article 10, para. 1, last sentence), the prohibition of employment of
children in harmful work (article 10, para. 3, third sentence), the respect of
the liberty of parents to choose for their children schools other than those
established by the public authorities (article 13, para. 3) and the undertaking
to respect the freedom indispensable for scientific research and creative
activity (article 15, para. 3). 25The double or mixed nature of some rights
can best be illustrated by the trade union rights. These rights clearly have
economic and social aspects insofar as they are essential for the promotion
and protection of economic and social interests, such as the right to work and
the enjoyment of just and favourable conditions of work, the right to an
adequate standard of living, the right to rest and leisure, etc. In this respect
the right to form and join the trade union of ones choice is rightly included in
instruments which aim at the realization of economic and social rights, such
as the International Covenant on Economic, Social and Cultural Rights and
the European Social Charter. On the other hand, trade union rights are a
species of the right to freedom of peaceful assembly and association and as
such recognized among the civil and political rights in the International
Covenant on Civil and Political Rights, the European Convention on Human
Rights and the American Convention on Human Rights. In fact, the IL0 has
emphasized time and again the particular relevance of respect for basic civil
liberties for the exercise of trade union freedoms.
On the basis of the foregoing paragraphs, the conclusion is justified that
the difference between civil rights and social rights is not a clear-cut one
but rather a question of gradation. The realization of social rights is very
much dependent upon the use of available resources and the introduction of
certain structural and institutional changes. The Secretary-General of the
UN has stated: Their effective transformation into directly applicable and
enforceable legal rights may require time.27 This statement implies that
social rights principles as contained in legal instruments can be given
concrete form and in due time can be converted into subjective and justiciable
rights. It is interesting to note that this idea of the gradual conversion of
principles in the social rights field into directly applicable and enforceable legal
rights, also finds much support, particularly in developing countries, in re-
spect to civil rights. This line of thinking was clearly expressed when the
implementation machinery of the International Covenant on Civil and Political
Rights was discussed at the twenty-first session of the General Assembly. The
views of many representatives were reflected as follows: The governments of
several developing countries also feared that their real difficulties in securing
forthwith some of the rights recognized in the Covenant might be miscon-
strued as bad will. However, as all such difficulties would gradually disap-
pear, an increasing number of States Parties would no doubt accept the optional
clause. and thereby give full effect to the system of implementation of the
Covenant. Viewed in a global perspective, the notion of gradual progress2s
seems to prevail in the whole of the human rights area, without a sharp
distinction being made between civil rights and social rights. The question
remains whether history and the present state of affairs in the world can
justify the supposition of gradual progress and advancement under any cir-
cumstances and whether decline in political, economic and social conditions is
not a recurring phenomenon or risk affecting the quality of life and basic
human rights. In such adverse situations, respect for the dignity and worth of
the human person tends to lessen, and therefore the notion of human rights-
and this would again apply to civil and political rights as well as to economic,
social and cultural rights-is even more crucial in order to preserve human
values, especially freedom from fear and want for every person and for the
whole community in which he or she lives.
3. INDIVIDUAL RIGHTS; COLLECTIVE RIGHTS

The distinction between the rights of the individual and the rights of the
group or community is also one which should not be taken in too categorical a
way. It is, after all, within the community that the individual can develop
fully his personality, as is pointed out in article 29, para. 1, of the Universal
Declaration.2g When a distinction is made between individual rights and
group rights, this distinction should not be viewed in terms of a
contradistinction. This does not diminish the fact that certain rights are of an
individualistic nature, such as the rights to privacy, freedom of thought and
conscience and the right to liberty and security of person; while other rights
are by their nature collective rights, such as most economic and social rights.
There are also rights which present individual and collective aspects.
Freedom of religion and freedom of expression are cases in point.
It is, however, undeniable that the general orientation and outlook of the
Universal Declaration of Human Rights is towards the individual person.
The same is to a large extent true for the International Covenants on Human
Rights. Most provisions of the Universal Declaration begin with the words
everyone has the right. . In fact, the Universal Declaration puts the
individual and his personality on an elevated level in the national and
international sphere. The basic idea is that every human being should have a
full and equal chance to develop his personality, with due regard to the rights
of others and to the community as a whole. As a corollary, respect for the
individual person means respect for the unique and diverse character of
every human person. This implies a large degree of tolerance within a plural
society. It would furthermore seem that such an individualistic approach to
human rights takes account of the creative role of the non-conformist in
society. Recognition of the individuals right of recourse at the national level,
and in view of various recently created procedures,30 at the international
level, also finds expression in the right of petition. This right of petition
signifies the individualistic character of the human rights concept.
Before attention is paid to the rights of groups or collectivities, the social
functioning or the social relationships of the individual must not be
overlooked. Article 1 of the Universal Declaration, in summarising the three
great principles of the French Revolution, states inter alia that all human
beings. should act towards one another in a spirit of brotherhood. The
social order and the community, to which the individual belongs, are also put
in a proper human rights perspective in articles 28 and 29 of the Universal
Declaration and in the fifth preambular paragraph of the International
Covenants on Human Rights. In fact, the International Bill of Human
Rights in its entirety places the human person in various social
relationships of which he is an integral part, e.g. his family, his religious
community, his employment, and the local, national and international order.
In this manner human life in its manifold social relationships finds recognition
and expression under the aegis of the promotion and protection of human
rights.
While in the preceding paragraphs emphasis was put on the rights of the
individual in the sense of the individual as a unique human being or as a
person forming part of various social relationships, attention will now be paid
to rights of groups or collectivities. No effort will be made to define a group
or collectivity, but for the sake of the distinction between individual rights
and group rights, a group should be taken as a collectivity of persons which
has special and distinct characteristics and/or which finds itself in specific
situations or conditions. Those special and distinct characteristics, may be of
a racial, ethnological, national linguistic or religious nature. The specific
situations or conditions could be determined by political, economic, social or
cultural factors. Taking into account these characteristics, which are
inherent in a group, or the situations or conditions which are of an accidental
nature, international human rights law aims either at protecting or
preserving the characteristics of the group or tries to bring about change in
those situations or conditions affecting the group which are intolerable under
accepted international human rights standards. Not only whole peoples or
minorities, whose right of self-determination is at stake, come within this
purview, but also groups whose economic and social level of living is below
minimum standards and groups who are victims of gross and large scale
violations of human rights, including discrimination.
Collective rights par excellence are the rights of minorities with a view to
preserving and developing their characteristics and the right of peoples to
self-determination, viz. the right freely to determine their political status and
freely to pursue their economic, social and cultural development. Under the
League of Nations there existed an elaborate system for the protection of
minorities, imposing obligations upon a number of countries which had fought
in the First World War on the side of Germany. 8:!The minorities treaties and
declarations contained four elements: (a) principles of equality or
non-discrimination; (b) guarantee of general human rights; in particular
guarantees concerning the use of language or the maintenance of certain
minority institutions; (d) guarantee of general or special autonomy or of
traditional rights. While the first two categories of rights were of an
individual nature and were to be assured to all inhabitants and all citizens of
the countries in question, the two latter categories were formulated either
as rights of persons belonging to minoritiesS4 or as rights of the minorities
themselves, and as such collective rights. Under the United Nations the
protection of minorities was never able to take a high profile; the original
orientation and outlook in the UN being in the direction of the rights of the
individual. Due to the growing influence in the UN of the countries of the
Third World, which received strong support in this matter from the East
European countries, a great deal of emphasis has shifted from individual
rights to collective rights, notably the right of peoples to self-determination,
the right of under-privileged peoples and groups of persons to a fair and
equitable share in the worlds resources, the right of racially discriminated
groups to equality before the law, notably in the enjoyment of human rights,
and most recently, the right to development and the right to peace.
It is interesting to note that the very first article of both the International
Covenants on Human Rights sets out a collective right, viz. the right of all
people to self-determination. By virtue of this right, all peoples freely
determine their political status and freely pursue their economic, social and
cultural development. The second paragraph of the same article deals with
the economic counterpart of this right, viz. the question of permanent
sovereignty over natural resources.87 It reads: All peoples may, for their
own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic
co-operation, based upon the principle of mutual benefits and international
law. In no case may a people be deprived of its own means of subsistence.
One of the arguments raised against this article was that a collective right of
this character was out of place in an international instrument on human
rights, the more so as the notion of people was extremely vague. On the
other hand it was stated that the collective right attached to all peoples, and
that, if denied that right, no people, let alone individual members of that
people, were free. In this line of thinking, the right to self-determination was
considered the most fundamental of all human rights.s The right to
self-determination has played an enormous role in the whole decolonization
movement of the United Nations. The Declaration on the Granting of
Independence to Colonial Countries and Peoples and its implementation
machinery became instrumental in this decolonization movement. This
Declaration states unequivocally that the subjection of peoples to alien
subjugation, domination and exploitation constitutes a denial of fundamental
human rights (article 1) and affirms in more cogent and ultimate language
than article 1 of the Covenants, the relevance of the right to self-deter-
mination for the enjoyment of other basic human rights and freedoms.40
The UN Secretary-General pointed out in his preliminary study of issues
relating to the realization of economic and social rights that these rights are
by their very nature collective rights. 41Articles 55 and 56 of the UN Charter,
which contain a pledge by the members of the UN to take joint and separate
action to promote higher standards of living, full employment, and conditions
of economic and social progress and development, together with the similar
pledge to promote universal respect for, and observance of, human rights and
fundamental freedoms for all, form the foundation for the efforts to attain a
more just and equitable world economic and social order. In this regard the
1979 report of the UN Secretary-General on the international dimensions of
the right to development is worthy of note. The report states that
enjoyment of the right to development necessarily involves a careful
balancing between the interests of the collectivity on one hand, and those of
the individual on the other. It would be a mistake, however, to view the right
to development as necessarily attaching only at one level or the other. Indeed
there seems no reason to assume that the interests of the individual and those
of the collectivity will necessarily be in conflict. A healthy regard for the

right of the individual to pursue his self-realization, manifested by respect for
this right within collective decision-making procedures which permit the full
participation of the individual, will contribute to, rather than weaken, the
efforts of the collectivity to pursue its right to development. In addition,
individual development and fulfilment can be achieved only through the
satisfaction of collective prerequisites.42 In 1979 the. General Assembly, in
resolution 34146, emphasized that the right to development is a human right
and that equality of opportunity for development is as much a prerogative of
nations as of individuals within nations.
A notable landmark in the development of the trend of a collectivist ap-
proach to human rights was the Proclamation of Teheran of 1968. The Procla-
mation repeatedly refers to gross and massive denials of human rights, particularly
under the policy of apartheid and other policies and practices of racial discrim-
ination, as a result of colonialism, arising out of aggression or any armed
conflict, and arising from discrimination on the grounds of race, religion, belief
or expressions of opinion.4 It also refers to the widening gap between the
economically developed and developing countries as an impediment to the
realization of human rights in the international community, and such other
urgent questions as large scale illiteracy and discrimination against women.44
In fact, the proclamation reflects the current approach to relate human rights
to urgent and serious worldwide political and economic problems of today,
bringing to the forefront massive denials of human rights. Whereas the Uni-
versal Declaration of Human Rights of 1948 makes the individual the central
figure in a variety of social relationships, the proclamation of Teheran focuses
very much on the group as the massive victim of denials of human rights. This
is, at least at the global level, a most striking development in two decades
from the individualist to the collectivist approach to human rights.
NOTES
1. See for instance the French Declaration of the Rights of Man and of the Citizen, 1789,
Article 17.
2. UN dot. A/2929, Annotations on the text of the draft International Covenants on
Human Rights, Chapter VI, para. 198.
3. See especially General Assembly resolution 321130(1977).
4. See John P. Humphrey, The International Law of Human Rights in the Middle
Twentieth Century, in The Present State of International Law and Other Essays,
International Law Association, 1973, pp. 75 ff.
5. Rougier, La thSorie de Iinteruention dhumanith, 17 RGIDP (1910), pp. 472 ff.
6. See for instance Article 2 of the Treaty of 28 June 1919 concluded with Poland.
7. See in particular E.W. Vierdag, The Concept of Discrimination in International
Law, with Special Reference to Human Rights, Martinus Nijhoff, The Hague, 1973.
8. The Court stated: Under the Charter of the United Nations, the former mandatory
had pledged itself to observe and respect, in a territory having an international status,
human rights and fundamental freedoms for all without distinction as to race. To establish
instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively
based on grounds of race, colour, descent or national or ethnic origin which constitute a
denial of fundamental human rights is a flagrant violation of the purposes and principles of
the Charter, Sohn and Buergenthal, International Protection of Human Rights,
Bobbs-Merrill, New York, (1973), p. 479. It is noteworthy that the Court established a
direct link between the language of Articles 56 and 55 of the UN Charter and the terms of
Article 1, para. 1, of the International Convention on the Elimination of All Forms of Racial
Discrimination. See also E. Schwelb, The International Court of Justice and the Human
Rights Clauses of the Charter, 66AJIL, p. 337 (1972), and Frank C. Newman, Interpreting
the Human Rights Clauses of the UN Charter, 5 HRJ, pp. 288-289 (1972).
9. The German language uses for this purpose the clear term notstandsfest.
10. Article 15, para. 2, of the European Convention on Human Rights, prohibiting
derogation from the right to life (Article 2), the right not to be subjected to torture or to
inhuman or degrading treatment or punishment (article 31, the right not to be held in
slavery or servitude (article 4, para. 11,the prohibition of retroactive application of criminal
law (article 7). Article 27, para. 2, of the American Convention on Human Rights makes the
following listing of articles which may not be suspended in time of war and other emergency
situations: article 3 (right to juridical personality), article 4 (right to life), article 5 (right to
humane treatment), article 6 (freedom from slavery), article 9 (freedom from er post facto
laws), article 12 (freedom of conscience and religion), article 17 (rights of the family), article
18 (right to a name), article 19 (rights of the child), article 20 (right to nationality), article 23
(right to participate in Government). See also Chapter 8, infra.
11. Governing Body Committee on Freedom of Association, 129th report, paras. 140 ff.
12. See report of the Organization of American States to the International Conference on
Human Rights, Teheran, 1968, Chapter 1V.D.
13. This and other related titles are now permanent features on the agenda of the UN
Commission on Human Rights.
14. Advisory Opinion on Reservations, ICJ Reports, 1951, pp. 15 ff.
15. The American Convention on Human Rights contains an elaborate and detailed chap-
ter on civil and political rights, consisting of no less than 23 articles, but it refers only very
briefly in one article to economic, social and cultural rights (article 26). See in a critical sense
Pedro Pablo Camargo, The American Convention on Human Rights, 3 (1970) HRJ, pp.
333 ff.
16. This enumeration of rights is illustrative but by no means exhaustive.
17. See in particular Norberto Bibbio, Human rights, in Proceedings of the Italian
Conference on Human Rights, p. 23, Cedam, Padua, 1968. E. W. Vierdag, op. cit., pp.
74-78; and UN dot. EICN. 41988,para. 16 et seq.
18. UN dot. A/2929 (1955), chapter II, paras. 4-12.
19. Ibid., chapter III, para. 8.
20. UN dot. EiCN.41988, paras. 48 ff.
21. See Final Act of the International Conference on Human Rights. Teheran, UN Sales
No. E. 68.XIV.2. See ibid., resolution. XVII on Economic Development and Human
Rights.
22. See in particular Egon Schwelb, The Nature of the Obligations of the States Parties
to the International Covenant on Civil and Political Rights, in Rene Cassin, Amicorum
Discipulorumque Liber I, Ed. Pedone, Paris, 1969, pp. 301 ff. See also International Labour
Office, Comparative Analysis of the International Covenants on Human Rights and the
International Labour Conventions and Recommendations, Official Bulletin, vol. LII, 1969,
no. 2, paras. 10 and 100.
23. UN dot. A/2929, chapter V, para. 8.
24. See Schwelb, note 22; see Chapter 10, i$ra.
25. UN dot. E/CN.4/988, para. 76.
26. See G. Caire, Freedom of Association and Economic Development (Geneva, ILO,
1977) and references therein.
27. UN dot. EiCN.41988, para. 75, and paras. 31 and 154.
28. See article 2, para. 1, of the Covenant on Economic, Social and Cultural Rights:
with a view to achieving progressively the full realization of the rights.
29. See Rene Cassin, De la place faite aux devoirs de lindividu dans la Declaration
universelle des droits de lhomme, Mdlanges Modinos, Ed. Pedone, Paris, 1968, pp. 478 ff.;
and UN dot. EICN.4/SUB.2/432 and Adds. (1980).
30. See the Optional Protocol to the Covenant on Civil and Political Rights; article 14 of
the International Convention on the Elimination of All Forms of Racial Discrimination;
article 25 of the European Convention on Human Rights; article 44 of the American Con-
vention on Human Rights; resolution 1503 (XLVIII) of the ECOSOC containing a proce-
dure for dealing with communications relating to violations of human rights and fundamental
freedoms.
31. The International Bill of Human Rights comprises: the Universal Declaration, the
two International Covenants, and the Optional Protocol to the International Covenant on
Civil and Political Rights.
32. See The International Protection of Minorities under the League of Nations, UN
dot. E/CN.4ISub.2/6.
33. See articles 2 and 7 of the treaty of 28 June 1919 concluded with Poland.
34. See articles 8 and 9, para. 1, of the same treaty.
35. See article 9, para. 2, of the same treaty.
36. No provision on minorities was included in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights contains an article on
minorities of a limited scope (article 27). See Study on the Rights qf Persons Belonging to
Ethnic, Religious and Linguistic Minorities, by Francesco Capotorti, UN Sales No. 78.XIV.l
(1979).
37. See also General Assembly resolution 1803 (XVII) (1962) containing a declaration on
Permanent sovereignty over natural resources.
38. UN document A/2929, chapter IV, paras. 3-4.
39. General Assembly resolution 1514 (XV) of 14 December 1960.
40. See also the Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter of the United
Nations (General Assembly resolution 2625 (XXV) of 24 October 1970). notably the descrip-
tion of the principle of equal rights and self-determination of peoples.
41. UN dot. EICN.41988, para. 21.
42. UN dot. EKN.411334 (1979), para. 85.
43. See Final Act, note 21 supra, paras. 7-11.
44. Ibid., paras. 12, 14 and 15.
4 Fundamental Principles of Human
Rights: Self-Determination,
Equality and Non-Discrimination
Karl Josef Partsch
Three principles will be dealt with in this chapter* which are of fundamental
importance for the protection of human rights. The import of each is of a
different nature from that of the others. There can be no doubt that equality
of human beings before the law is one of the most important of human rights
and that it may be regarded as fundamental in the sense that it is the basis for
the development of guarantees of specific human rights. Whether specific
guarantees for equal protection by courts, equal pay for equal work, equal
access to professions, to other economic activities or to the civil service, or
the right of participating equally in the political process by voting or other-
wise are expressly contained in a catalogue of human rights or not is not
decisive as long as equality before the law is guaranteed in a general way.
Courts and other state authorities may develop such guarantees from the
basic norm. Equality has in this way the function of a general human right,
offering a basis to a greater number of specific human rights which may after
some time be incorporated into the catalogue but would also be applied by
courts if this should not be the case. The guarantee of equality before the law
has a function comparable only to the guarantee of the right to free develop-
ment of the personality. It is a dynamic right which may form the basis for a
great number of other rights.
Quite different is the character of the principle of non-discrimination. It is
not a separate human right-however important this principle may be-but
only a corollary to the right of equal protection before the law. In this frame-
work it prevents certain criteria from being used and it broadens the applica-
tion of the basic norm. If equality before the law is understood as the principle
according to which equal facts should be treated equally and unequal facts
may be treated in accordance with the special circumstances of the case, the
principle of non-discrimination prohibits a differentiation in some respects.
For instance, distinctions of race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status are not
*Written by the author in 1976 and updatedby Unesco

62 Karl Josef Partsch
permissible though they may be regarded as legitimate criteria under the

principle of equality before the law. It may therefore be said that the princi-
ple of non-discrimination determines the field of application of equality, with-
out adding a further human right to the catalogue.
Self-determination presents more difficulties than the two other princi-
ples: Is the principle of self-determination as such one of the human rights or
is it perhaps-as frequently alleged-the essential condition for all human
rights?
The first theory-that self-determination is a human right-is true only if
the principle is also a legally binding right in the sense which is given to this
concept by the doctrine of the sources of international law. Furthermore the
question is raised whether it is a huma,n right. Both questions are controver-
sial according to the opinions of learned scholars and also according to the
practice of States and of international organizations. Both of these questions
may be answered only after considering what self-determination means at
present and how its understanding has been developed.
1. SELF-DETERMINATION
(a). The Wilsonian approach

Without referring to achievements in former times and to its formulation by
philosophers and politicians until the 19th century, it may be stated that this
principle gained world wide importance during the First World War. The
American President, Wilson, on January 8, 1918 announced fourteen points
as a proposed basis for peace. He emphasized inter alia, the principle that in
determining all such questions of sovereignty the interests of the populations
concerned must have equal weight with the equitable claims of the govern-
ment whose title is to be determined.
Later he defined this point more precisely: The central principle that we
have struggled for in this war is that no government or group of governments
has the right to dispose of the territory or to determine the political alle-
giance of any free people. In implementation of this principle a great number
of nations in Central and Eastern Europe gained independence; and the
former German colonies and considerable parts of the Ottoman Empire were
brought under the Mandate System of the League of Nations. However,
similar control was not established with regard to the colonial empires of the
Allied and Associated powers themselves. In the peace treaties careful atten-
tion was given to the protection of ethnic minorities. One of the main methods
of realizing the principle was plebiscites held in some territories in order to
ascertain the ethnological and economic basis of the claims of the inhabitants.4
This central principle has certainly not been applied universally,5 but
rather in accordance with political expediency and taking into account strate-
gic, economic and other political considerations. It was not regarded as a
Fundamental Principles of Human Rights
legally binding right but as a mere political principle which, according to the
case in question, might or might not be applied. President Wilsons draft of
the Covenant, however, again clearly expressed the relationship between
self-determination-as understood at that time-and the principles of politi-
cal independence and territorial integrity: self-determination may in certain
cases prevail. The principle is proclaimed in universal terms and relates
mainly to ethnic minorities living together in a certain territory inside a
pre-existing state or empire.
Art. 3 of Wilsons draft for the Covenant of the League of Nations stipu-
lated: The Contracting Parties unite in guaranteeing to each other political
independence and territorial integrity but it is understood between them that
such territorial adjustments, if any, as may in future become necessary by
reason of changes in present racial and political relationships, pursuant to the
principle of self-determination, and also such territorial adjustments as may
in the judgment of three-fourths of the delegates be demanded by the welfare
and manifest interest of the people concerned, may be effected if agreeable to
those peoples; and that territorial changes may in equity involve material
compensation. The Contracting Powers accept without reservation the prin-
ciple that the peace of the world is superior in importance to every question
of political jurisdiction or boundary.
This provision was omitted in the final text; and in the Covenant of the
League of Nations no express mention of self-determination was to be found.
The principle however has dominated history between the two World Wars.
It is sufficient to mention the case of Bohemia where first self-determination
was denied to a substantial ethnic minority and later a flagrant violation of
the same principle with regard to the majority was committed.
Between the two World Wars self-determination was understood as a
political principle which applied to all kinds of peoples without distinction.
The term was used in the following instances:
- peoples living entirely as minority (or even as majority) groups inside a
state ruled by another people (as the Irish before 1919 and the Mongols
before 1911/1921);
- peoples living as minority groups in more than one state without their
own statehood (as Poles in Russia, Austria and Germany before 1919);
- a people living as minority group in a state but understanding itself as
part of the people of a neighbouring state (Mexicans in California and Hungarians
in Romania);
- peoples or nations forced by external influences to live in separate
states (as the German nation within several states);
- a people living as the majority (or also a a minority group) inside a
territory with a special status under foreign domination (main example: colo-
nial regimes).
In all five cases it was required that the respective peoples settle in
certain parts of the country where they at least formed the majority of the
population. Groups of immigrants dispersed all over the country-such as

Blacks and also non-English-speaking Europeans in the United States of
America-were not regarded as peoples. Implementation of the principle
took different forms: international protection of minorities, regional auton-
omy, statehood within a federal state or within a commonwealth of nations,
and finally national independence.
(b). The Atlantic Charter

During the Second World War two major aspects of self-determination were
emphasized in the Atlantic Charter of 14 August 1941: Second, they desire
to see no territorial changes that do not accord with the freely expressed
wishes of the peoples concerned. Third, they respect the right of all peoples
to choose the form of government under which they will live; and they wish to
see sovereign rights and self-government restored to those who have been
forcibly deprived of them. This text is still conceived in the spirit of the
pre-war period and the question may be raised whether the provision in the
Charter of the United Nations, where its purposes are defined, should not be
read with the same understanding. Such purposes are: 2. To develop friendly
relations among nations based on respect for the principle of equal rights and
self-determination of peoples. (Art. 1, para. 2).
The principle of self-determination is here not only combined but even
identified with the principle of equal rights, using the word principle in the
singular, whereas the respect for human rights and for fundamental free-
doms only appears in the following paragraph. This strange combination led
a distinguished early commentator on the Charter to the conclusion that
self-determination of peoples in Art. 1, para. 2 can only mean sovereignty
of the states and that the formula of Art. 1, para. 2 has the same meaning
as the formula of Art. 2, para. 1 where the principles of sovereignty and
equality are combined in a rather ambiguous way into one principle: that of
sovereign equality.7
This strange inversion of the traditional meaning of the concept of self-
determination has not been followed by other authors. When published,
Kelsens opinion appeared isolated. Only in retrospect, thirty years later,
does his opinion seem to reflect the fundamental changes which have taken
place.
This change from a first period in which self-determination has come to a
substantial measure of acceptance to the second period, following the Second
World War, has been ably described: Wilson proclaimed the right in univer-
sal terms, but for practical purposes he concentrated on the European terri-
torial settlement following the war. The peoples involved during this period
were ethnic communities, nations or nationalities primarily defined by lan-
guage and culture. In the second (period) the focus of attention has been
the disintegration of the overseas empires, which had remained effectively
untouched in the round of Wilsons self-determination.. .In the present
Fundamental Principles of Human Rights 65
era of decolonization ethnic identity is essentially irrelevant, the decisive,

indeed, ordinarily, the sole consideration being the existence of a political
entity in the guise of a colonial territory.
This development began soon after United Nations organs became active
in the field of the international protection of human rights and met with
considerable criticism from the side of those who still followed the ideas of
Woodrow Wilson. lo
The new doctrine abandoned the concept that groups, formed as peoples
on the basis of political consciousness but living under foreign rule, are enti-
tled to claim self-determination, that this principle applies universally and
that the claim to self-determination could be fulfilled in various ways, either
by conceding a certain degree of cultural or political autonomy within the
State, by integration into or association with a State, or by secession in order
to form a new State or to unite with another State.
According to the new concept only territories under colonial rule shall have
the right to self-determination which involves accession to independent state-
hood. It does not matter how the population of such territory is ethnically
composed. As soon as independent statehood is reached, the territorial integ-
rity of the country is protected against any attempt aimed at the partial or
total disruption of the national unity, even by one ethnic group which in this
way is brought under alien domination. This new right of self-determination
may also be exercised by the use of force and with the help of other powers.
(c). The Declaration on Decolonisation (1960)

These principles have been summarized in the Declaration on the Granting of
Independence to Colonial Countries and Peoples, adopted by the UN General
Assembly in Resolution 1514 (XV) on 14 December 1960, where an attempt is
made to link the evolution of the field of human rights to the right of self-
determination. This is already done in the preamble where a close connection
between the principles of self-determination and of respect for human rights
is established (para. 2); and also in the operative part which begins with the
declaration that the subjection of peoples to alien subjugation, domination
and exploitation (i.e. the denial of self-determination) constitutes a denial of
fundamental human rights. (sub-para. 1). Though it is emphasized that
all peoples have the right to self-determination (sub-para. 2), the effect of
the preamble, where the desire to end colonization is mentioned not less than
four times, is that self-determination is regarded to be a legal principle only
as far as it is claimed by peoples under colonial rule.
This is confirmed under sub-para. 5: In Trust and Non-Self-Governing
Territories. immediate steps shall be taken to transfer all powers to the
peoples of those territories. . in order to enable them to enjoy complete
independence and freedom. For these territories the following provision of
sub-para. 6 states that any attempt aimed at the partial or total disruption of
the national unity and the territorial integrity of a country is illegal.
Karl Josef Partsch
In this Declaration of 1960 no attempt was made to bridge the apparent

contradiction between the established right of secession and the guarantee of
national unity. This was only done ten years later in the Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation
Among States in Accordance with the Charter of the United Nations,l with
the development of the theory that the territory of a colony or other non-
self-governing territory has, under the Charter, a status separate and dis-
tinct from the territory of the State administering it. Under this assumption
the guarantee of national unity applies to each colonial unit separately.
Both Declarations are drafted in the form of authoritative interpretations
of the Charter, not as amendments thereof. If Art. 1, para. 2 of the Charter
establishes only a political principle of self-determination, this apparently
cannot be changed by Resolutions of the General Assembly.
In order to promote the process of decolonization, special bodies have been
established by the General Assembly: first, a Committee on information
relating to non-self-governing territories, later the Special Committee of 24
members (now 25). These subsidiary organs are not only to observe the
conditions in non-self-governing countries and to inform the General Assem-
bly thereon. A large part of their activity consists of influencing and encour-
aging liberation movements, in accordance with the Declaration on the Grant-
ing of Independence, under which these movements can enjoy special privileges.
In order not to be limited to the sources of information provided by the
administering States, these Committees receive petitions from the inhabi-
tants of these territories. They tend to exercise a control similar, as far as
possible, to the international Trusteeship System provided for in Chapters
XII and XIII (articles 75-92) of the Charter.
When the legal effect of the abovementioned Declarations is evaluated, the
practice established for several years has to be taken into account. Those who
take the practice in this area into account when interpreting the content and
importance of the relevant legal provisions must admit that in this field an
important development has taken place.
With the establishment of a procedure inside the Organization of the UN in
favour of certain beneficiaries of the right to self-determination and with the
definition of the content of this right, the legal character of the original
principle has changed-but only within the limits of application of this new
practice.
This would lead to the result that there exists a legal right to anti-colonial
self-determination, a privilege for a relatively small part of the world popula-
tion (from about 130 million in 1961 only about 3 million are left in 1981). The
practice established in favour of these beneficiaries has, however, no effect
for other peoples under foreign domination. With respect to them the legal
situation under the Charter remains unchanged. The principle of self-
determination under the Charter continues to be valid for them-as a princi-
ple whose realization may depend on political expediency and other circum-
stances, but without conferring on them a right to secession and to full

independence. l3
(d). Covenants on Human Rights

The International Covenants on Human Rights both contain in their common
article 1 a guarantee of the right of self-determination without defining the
beneficiaries or the content, and without establishing a procedure for its
realization. Even though the Covenants came into force in 1976, little clarifica-
tion has emerged. l4
The following questions have to be answered: Can the principle of, or right
to, self-determination be regarded as a human right in the technical sense;
and how should the relations between these two principles be otherwise
defined?
Without any doubt the ideological bases of both principles have much in
common: both go back to the ideas of the French Revolution, when the
concepts of human dignity, of the sovereignty of the people, and of the active
role of the citizen in the political process were developed in opposition to the
doctrines of the omnipotent State, of the sovereignty of princes and of the
passive role of the obedient subject.
Both principles set limits on the powers of the State but in different forms:
the protection of human rights secures a personal sphere of activity to the
citizen who remains inside the frontiers of the State and in this way is en-
abled to live in freedom and dignity in his State. This protection may therefore
be qualified as a positive contribution to the relations between individuals
and the public authority. The principle of self-determination on the other
hand has a negative character in relations between the entities concerned if a
group of former citizens secedes. If an ethnic group gains a certain autonomy
either as a State in a Federation or even as a self-administered unit in a
decentralized Unitarian State, a negative element exists. The main differ-
ence, however, is that the protection of human rights is assigned to individ-
uals as such. The subject of the principle of self-determination is always a
group which only collectively can make use of the powers, rights or possibili-
ties offered by it.
The argument has been put forward that there are also other human rights
which may only be exercised collectively, such as freedom of association and
the right to join labour unions. It is true that there exists a collective element
in these rights but besides this element there is in all such cases an individual
element: the decision to join the association or the union. Such an individual
element is hardly to be found in the exercise of self-determination, except
perhaps in the decision to participate or not to participate in a possible
plebiscite. Obviously, this weak individual element exists with regard to the
old concept of self-determination of the Wilsonian period; it appears still
weaker in the new concept. For all these reasons the principle of self-
determination cannot be regarded as a human right, although it has been
inserted into the two Covenants of the United Nations against the opposition
of some Member states.
How can the relationship between these two principles be defined cor-
rectly? In many resolutions of the General Assembly the formula is used that
self-determination is a pre-requisite of the effective exercise of all human
rights. This formula immediately raises objections to the extent that it is
used as a political postulate.
Respect for human rights, irrespective of their common ideological bases
already mentioned above, can satisfy the desires of those who wish to utilize
the principle of self-determination: if freedom of speech is respected, if free-
dom of religion is safeguarded, together with freedom of assembly and of
association, the temptation to leave a multinational or multiracial State is
certainly less strong, and the possibility of integrating the minority group
into the nation is higher. On the other hand, the principle of self-determination
can be entirely realized only by granting certain privileges to an autonomous
group: use of their own language by public authorities and in publicly fi-
nanced schools, and a certain preferential treatment in election laws, to
mention only some fields.
A proper definition of the relations between the two principles may per-
haps be that respect for one is a pre-requisite for respect for the other.
2. EQUALITY
(a). Equality and non-discrimination

Ever since the French Revolution, the principle that all human beings are equal before the
law has found expression, either in this or in a similar wording, in a large number of
European and non-European constitutions. However, within Europe it is only in Switzer-
land, Germany, Austria and Italy that it has developed into a genuine constitutional princi-
ple, i.e., into a principle which is recognized not only in administrative and civil law and in
the procedural rules of the courts, but also in constitutional law, and is protected by
specialized constitutional courts.
With these words, a well-known constitutionalist introduces an essay on

the principle of equality. The author certainly did not intend to place the
legal order of the countries mentioned on a higher level than the legal order
of other countries. Certainly he only wanted to explain the different approach
to an important political problem-the limitation of discretionary power-in
different legal systems. The four countries mentioned by him-and possibly
others may have been added in the meantime-try to limit the powers not
only of the executive and of the judiciary but also of the legislature by
introducing the concept of equality before the law into the constitution, and
by providing for a judicial control of formal and of substantive equality by
constitutional courts. Formal legal equality precludes intrinsically contra-
dictory measures in either the legislative or the administrative field. Sub-
stantive legal equality demands that the same standard of rights and obligations
be applied to all men. According to this conception, the factual peculiarities
and differences should be taken into consideration. They must be respected
not only by the authorities carrying out the law but, above all, by the law-
making bodies.17
This is acceptable only for a legal system which-following the doctrine of
the separation of powers-is ready to limit the powers of parliament by
establishing certain constitutional limits for its work and by entrusting the
enforcement of those limits to the courts. It is unacceptable for those coun-
tries which adhere to the principle according to which the great exception-
from the limitations of discretionary powers-is the unlimited discretion of
the legislature. lx This is not only true for the systems of absolute power of
parliament, in the British tradition, but also for Socialist States.
From this comparison it can be seen that the principle of equality before
the law has a different meaning in the national legal and constitutional or-
ders. There exist among the three main legal traditions-Anglo-Saxon law,
Socialist law, and continental European law based on Roman traditions--entirely
different concepts.
The close relationships between the principle of equality before the law and
the constitutional structure of a given State, the differences between legal
systems when the values have to be defined which determine whether an act
has to be regarded as arbitrary or socially unjust, and finally, the ex-
tremely broad field of application of this principle make it impossible to define
it in a manner valid for all national legal systems and for the formation of a
sound basis for its universal application.
In order to avoid these uncertainties and to establish criteria for deciding
which facts should be regarded as conforming to the principle of equality, the
negative formulation of this principle has progressively gained importance in
many national legal systems as well as in international law: with the proscrip-
tion of discrimination.
The basic consideration in favour of this negative approach is to achieve a
higher degree of clarity and certainty in arriving at equality. The non-dis-
crimination clause is not limited to the claim that equality should be reached,
but indicates also the notion of what should be equal, and according to what
criteria. The abstract notion of equality is replaced by a concrete indication of
the field of application and of criteria such as race, colour or descent. It
should, however, be mentioned that the use of the negative approach does
not solve all problems. If discrimination on the basis of sex is prohibited, does
this mean that men and women must be treated without differentiation with
regard to facts or circumstances connected with biological differences (as
motherhood)? Or is only arbitrary discrimination excluded? Is only a detri-
mental differentiation excluded or also a preferential treatment with an indi-
rect discriminatory effect? Is a discriminatory intention required or is a
discriminatory effect sufficient?
Not all of the questions raised are answered by the numerous definitions of
the term: only one of them is reproduced here as a model:
The term discrimination. is generally used to connote unequal treatment of equals either
by the bestowal of favours or imposition of burdens. Therefore, whenever discrimination is
referred to in the context of international law, there is an implicit assumption of its relation
to a norm, or sets of norms, prescribing equality of treatment. In addition, discrimination
generally carries with it the idea of unfairness.i9
(b). Relevant texts

In the light of these general remarks it is not surprising that in these instru-
ments more attention is given to non-discrimination than to the principle of
equality before the law.
(i). THECHARTEROFTHE U~~ITED~VATI~NS
The principle of non-discrimination appears three times in the operative part

of the Charter: in art. 1 para. 3, in art. 55 para. 6, and in art. 76 (c). An
express reference to the equal rights of men and women is to be found only
in the Preamble. Implicitly, however, equality before the law is included in
all the references to the protection of human rights.
(ii). THE UNIVERSAL DECLARATIONOF HUMAN RIGHTS
The Preamble recalls the reference in the Preamble of the Charter to the
equal rights of men and women; furthermore, art. 1 begins in a preambular
style with the statement: All human beings are born free and equal in
dignity and rights. This sounds retrospective. One may find in these words
an indication of the principles on which the rights are later enumerated,20 a
tribute to the important role the principle of equality played in former times
when specific and more detailed rights had been derived from it. Such a
dynamic role, however, does not seem to be expected on the international
level, where a common understanding of these rights and freedoms21 shall
be the basis-and also the limit-of the undertaking to be achieved. The
international protection of human rights is therefore extended only to the
rights and freedoms universally recognized and expressly inserted into the
catalogue. There is no room for a general clause as the basis for the develop-
ment of additional rights.
The catalogue of the Universal Declaration begins then with the principle
of non-discrimination:
Art. 1: Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
The rule is thus established as such without reference to equality before

the law. This circumstance may be used as an argument that it has to be
understood as a strict rule, i.e., that any distinction, whether arbitrary or

not, is excluded and that no further qualifications may be required. The field
of application of the rule is, however, limited to the rights and freedoms set
forth in this Declaration; thus the rule of non-discrimination is not estab-
lished absolutely. In a second paragraph the rule of non-discrimination is
expressly confirmed for all countries subjected to any limitation of sover-
eignty. Only in article 7 do equality before the law and the equal protection of
the law without any discrimination appear. Here no reference to the rights
and freedoms set forth in the Declaration is added. The broader principle of
general equality seems to have a wider field of application than the rule of
non-discrimination. Whenever arbitrary discrimination outside the field cov-
ered by the rights and freedoms of the Universal Declaration occurs, may it
then be regarded as a denial of equality, though it is not covered by article 2?
Is the person affected entitled to equal protection by the law? The answer is
given in the second sentence of article 7: protection against discrimination is
to be guaranteed only if it has been committed in violation of this Declara-
tion. Nevertheless, a denial of the principle of equality before the law may
have been committed, but sanctions against this denial have not been foreseen.=
It may be argued that such a legalistic interpretation of the Universal
Declaration-an instrument not legally binding-is not appropriate and that
it should be left to the Covenants to clear up such divergencies. This argu-
ment should be accepted. If, however, the Declaration is understood as an
authoritative guide to the interpretation of the Charter, it is at least remark-
able that in the Declaration the reciprocal relations between the broader and
more general principle of equality before the law and the rule of non-
discrimination have been reversed.
While the rule of non-discrimination-at least historically-had the value
of a corollary to the principles of equality and of equal protection of the law,
the latter now appears only as a method of applying, in theory and in prac-
tice, the rule of non-discrimination. Apparently political considerations have
influenced the concept in a dogmatic way.
The first attempt to translate the Universal Declaration into positive inter-
national law on a regional basis should be mentioned here. The European
Convention on Human Rights totally eliminated any reference to the right of
equality before the law and contains solely an article regarding non-discrimination
in the final provisions which follows the catalogue of human rights and free-
doms. An attempt to include a guarantee for the protection of a general right
to equality before the law in later years failed.2 The main objections to this
attempt were that it seemed inadvisable to include a general rule which could
endanger the system of a restrictive enumeration of human rights in an
international instrument.
(iii). THE COVENANTS
In the two Covenants the tradition of the Universal Declaration is followed,

at least in the beginning. Part II of the two Covenants contains a rule of
non-discrimination which largely follows article 2 of the Universal Declara-

tion. In addition, article 3 introduces the undertaking to ensure the equal
right of men and women in the enjoyment of all rights set forth in the
respective Covenants.
A substantive difference from former instruments can be found in article
26 of the Covenant on Civil and Political Rights, concerning the relations
between the rule of non-discrimination and the principles of equality before
the law and equal protection of the law. In an earlier draftz4 the rule and the
principles were mentioned side by side without establishing or defining the
mutual relations between both of them. In the Third Committee of the Gen-
eral Assembly in 1961 the rule of non-discrimination was introduced into the
guarantee of equality before the law. A vigorous reaction followed, aiming at
a clear distinction between both principles. The result was a strange com-
promise: equality before the law and the equal protection of the law are
guaranteed as such. The rule of non-discrimination, however, is subordinated
to these two principles. This subordination has the practical consequences
that no strict rule of non-discrimination is established. By this subordination
the guarantee of non-discrimination is certainly weakened. It may be asked
whether this weakening is actual. In any case one cannot say that the rule of
non-discrimination, by its subordination to the principle of equality before
the law, has lost any normative effect. When unacceptable criteria for differ-
entiation are mentioned, this at least has the effect of reversing the burden of
proof concerning the arbitrary character of the distinction.
The compromise achieved has the advantage of dogmatic clarity. Whether
the practical political disadvantages are considerable is open to doubt. With
the Covenants, the history of general provisions regarding the guarantees of
equality and non-discrimination is concluded. When reviewing later devel-
opments in special fields, it may appear that further progress has been achieved.
3. NON-DISCRIMINATION
(a). The catalogue of criteria

The practical importance of the rule of non-discrimination is largely deter-
mined by the addition of certain criteria and it has now to be asked what
criteria are selected, why, and how the relations between them have to be
determined.
Whereas the Charter of the United Nations expressly mentions only four
criteria in its clauses on non-discrimination-i.e., race, sex, language and
religion, this catalogue has been considerably enlarged since the Universal
Declaration on Human Rights in 1948. In addition to race, colour also
appears. Furthermore, political or other opinions, national or social origin,
property, birth or other status (art. 2 (1)) are added. The Covenants of 1966
have taken over this catalogue verbatim and it has also been copied by
regional human rights instruments and by a number of State Constitutions

drafted after 1948.
Though this catalogue is not exhaustive (distinction of any kind, such
as. . ), it may be asked why only these criteria have been selected and not
others. In some cases, corresponding rights and freedoms set forth in the
Universal Declaration can be found, such as
sex: equality of men and women(Art. 16)

religion: freedomof religion (Art. 18)
political or other opinions:freedomof thought and opinion(Art. 18119)
property: right to own property (Art. 17)
For other criteria, such as race , this is not the case. Apparently there is
no answer to the question from a systematic point of view. Listed are just
those criteria which, according to experience, have led to unlawful discrimi-
nation. The catalogue is based on historical experience and reflects values
which are prized at present. A hundred years ago the list would have been
composed in a different way and might have included such items as honour
and dignity. It is likely that in the year 2080 some items may have disap-
peared and others added.
As to the relations between the different criteria, it may be said that some
are more important than others. That the four criteria mentioned in the
Charter are more important than the other ones is already recognized by the
fact that article 4 of the Covenant on Civil and Political Rights regarding the
derogations of fundamental rights only requires that discrimination not be
based on the grounds of race, colour, sex, language, religion or social origin.
The other criteria are not mentioned. It is not possible to define a single
criterion fixing its limits precisely. On the basis of article 1 of the Interna-
tional Convention on the Elimination of all Forms of Racial Discrimination,
race includes colour, descent, national or ethnic origin. Ethnic origin re-
lates to language, social origin and even religion. Political and other opinions
are closely connected to national and social origin, to birth and other status.
Certain criteria overlap. Hardly any of them can appear alone without affect-
ing others.
In the following, only the three important criteria of discrimination are
reviewed, namely, sex, race and religion.
(b). Discrimination based on sex

It is a fundamental principle. that Parliament can do everything but make
a woman a man, and a man a woman.27 With this grotesque expression
which has almost become proverbial,2X one of the problems of the legal
equality between men and women is caught in a slogan: men and women are
human beings who are biologically different from each other. This difference
cannot be removed by the legal order. From this difference, however, it does
not necessarily follow that their legal position is different. Both can be enti-
tled to equal rights. This is the target that human rights instruments try to
reach. They do it with care and precaution.
(i). THECHARTERANDTHELJNIV~SALDECLARATION
In the Charter, faith is affirmed in the equal rights of men and women
(Preamble). Non-discrimination as to sex with respect to human rights is
stated twice (art. 1 (3); 55 (c) Charter), not as an independent rule but as the
modality for the fulfillment of other rules. In the internal sphere of the UN,
equality is established (art. 8). In the Universal Declaration no general rule
is to be found stating that men and women shall have equal rights. The
non-discrimination clause of the Charter is repeated (art. 2 (l)), equal rights
in a limited field (as to marriage, during marriage and at its dissolution) are
stated, but otherwise the equality of men and women is only indirectly ex-
pressed by using everyone or all as beneficiaries of the rights set forth.
(ii). UNITED NATIONS ACTIVITIES
Considerable activity has occurred in United Nations organs, as if a general

rule has already been established that it is their task to eliminate, as far as
possible, existing legal differences between man and woman. This activity is
dedicated to the political rights of women, to those of nationality, civil law
matters (especially marriage), education and economic and social life. A great
number of Conventions have been concluded, and many decisions or recom-
mendations have been adopted either by the General Assembly, by the Inter-
national Labour Organization or by Unesco.
(iii). COVENANTSONHU~AN RIGHTS
Developments in special fields must be considered in order to show the con-

text in which progress has been made towards a general guarantee. Both
Covenants, adopted by the General Assembly 18 years after the Universal
Declaration, provide in Part II, which contains the general provisions, an
article 3 which reads in almost identical terms:
The States Parties to the Present Covenant undertake to ensure the equal right of men
and women to the enjoyment of all civil and political (all economic, social and cultural) rights
set forth in the present Covenant.
This article 3 is apparently not a fundamental right of individuals-as results

from a comparison with the manner in which such rights are drafted in Part
III of the Covenant on Civil and Political Rights-but a State obligation.
Furthermore, the principle of equality between men and women is not estab-
lished as such and in an absolute manner but in relation to the enjoyment of
the other rights set forth in the Covenants.
It may nevertheless be called a step forward in comparison to the non-
discrimination clause of art. 2 (1). Such a clause is of a limitative character,

while art. 3 indicates a positive aim to be achieved.
(iv). THEDECLARATIONANDCONVENTIONONTHEELIMINATIONOFDISCRIMINATION
AGAINSTWOMEN
One year later-in 1967-an instrument was adopted by the General Assem-
bly which summed up the progress made in the last twenty years and also
contributed to a further development: The Declaration on the Elimination of
Discrimination against Women. SoThis Declaration is unique in the drafting
history of United Nations instruments.
The normal procedure is that a Declaration precedes a Convention as in the
case of the Universal Declaration and the Covenants. There are also cases in
which the organs of the United Nations have taken only the first step of
adopting a Declaration without continuing to prepare also a Convention; the
main .examples are the Declaration on Granting of Independence to Colonial
Countries and Peoples, and the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States. Here,
however, a number of Conventions had already been adopted by the United
Nations Organization or their specialized agencies and a declaration followed
only afterwards, in order to present a systematic review of the progress
achieved and to add new claims for further progress.
More recently, in December 1979, the General Assembly adopted the Con-
vention on the Elimination of All Forms of Discrimination against Women
which is considered in detail in Chapter 10 below.
(V). CONCLUSIONS
In order to summarize the result of this investigation it seems apparent that

the best results have been achieved in the political field. In the field of
education and labour relations a degree of progress has been achieved with
the active help of the competent specialized agencies. The greatest lacunae
are to be found in the field of civil and private law. This may be partly due to
the lack of sufficiently vigorous and organized pressure from those interested.
(c). Racial discrimination
(i). THECHARTER
Distinction as to race holds a predominant place in the United Nations

Charter. It appears in the first article and as the first of the four banned
grounds for distinction: race, sex, language or religion.
It is certainly for historical reasons that the race question is thus privi-
leged. It recalls the holocaust in which millions died only because they be-
longed to a certain race. In the meantime the problem of the conflict between
whites and coloured, between colonial powers and colonized peoples has gained
increasing importance. The race question is even more serious when seen
from the viewpoint of decolonization and of the elimination of the remnants

of colonial rule, especially in South Africa.
(ii). THE INTERNATI~NALCOURT~FJUSTICE
The importance of this problem is also marked by another fact: with respect
to racial discrimination the International Court of Justice has stated that the
provisions of the Charter regarding the promotion of human rights are, under
certain conditions, legally binding on States Parties:
To establish. and to enforce distinctions, exclusions, restrictions and limitations exclu-

sively based on grounds ofrace, colour, descent or national or ethnic origin which constitute
a denial of fundamental human rights is aflagrant violation of the purposes and principles
of the Charter. (Opinion on the presence of South Africa in Namibia I.C.J. Reports, 1971,
para. 131).
In no other case has the Court stated so clearly that the denial of fundamen-
tal rights may constitute a violation of the Charter and therefore be illegal.
(iii). RACE AND OTHER CRITERIAOF DISCRIMINATION
Before discussing what race is and how it may be defined, one element
should be mentioned which enables the rule of non-discrimination to be dis-
tinguished from other criteria. Invidious discrimination on the grounds of
sex, language or religion can be eliminated by the full realization and implemen-
tation of specific human rights. If equality between men and women in their
mutual relations, if linguistic freedom, if freedom of religion and belief are
fully guaranteed and if these guarantees are also implemented, discrimina-
tion on these grounds should disappear. There is a correlation between these
specific freedoms and the possibility of discriminatory acts. In respect of
race no such specific freedom exists. Racial discrimination will only disap-
pear if full equality-in its broadest sense-is achieved. One could even say
that to this end all of the fundamental human rights have to be implemented.
The relations between fundamental human rights and racial discrimination
will be further defined later.
(iv). DEFINITION OF "RACE))
The definition of race and racial discrimination presents many problems.

A vast literature has been written by anthropologists, biologists, social scien-
tists and lawyers. Only the definition given by sociologists can be used for
legal purposes: a human group that defines itself andlor is defined by other
groups as different from other groups by virtue of innate and immutable
physical characteristics.
Important is the subjective element: a group that is defined by other
groups as different It is Unesco which has more systematically consid-
ered the racial question using an interdisciplinary approach. It has always
endeavoured to associate in its work biologists, anthropologists, sociologists,
jurists, ethnographers, historians and geneticians, as well as representatives

of other scientific disciplines. Four Unesco Declarations2 constitute land-
marks on the road leading to the study of race and racism:
1. Declaration on Race, July 1950

2. Declaration on Race and Racial Differences, June 1951
3. Proposals on Biological Aspects of the Racial Question, August 1964
4. Declaration on Race and Racial Prejudices, September 1967
These four declarations constituted the basis for the preparation of the very
significant Declaration on Race and Racial Prejudice, adopted by the Unesco
General Conference in 1978. The significance of this declaration is considered
in Chapter 13 below.
The most important legal definition in this general area is contained in the
International Convention on the Elimination of All Forms of Racial Discrimi-
nation (1965), which (in article l(1)) includes besides race, also colour, de-
scent, and national and ethnic origin. As mentioned above, race refers to a
group that is socially defined on the basis of physical criteria. Colour is only
one of these criteria. Descent means a social group defined on the basis of
language, culture or history. National and ethnic origin is mainly determined
on the basis of consciousness. In all these cases it is not an objective but a
subjective definition which, however, refers to different criteria. The impor-
tant question is always whether a person is held to be physically, socially or
culturally different by others, whether this is true or not. In general it is
another person who determines the race of a person.
It results from this definition that the concept of race is very broad and
covers a multitude of cases of varying intensity and importance. The rela-
tionship between Bantus and Afrikaaners in South Africa is included as well
as the relationship between Pakistani and British workers in an English
factory or between Italian workers from Verona and colleagues in a Bavarian
factory, though both may be of the same Langobardian descent, but speak-
ing two different languages and adhering to different ethnic traditions.
It has been asserted that a substantial difference exists between race
relations and the relations between ethnic groups: a solution of race prob-
lems is only conceivable on the basis of complete equality and integration,
while an ethnic group had a legitimate interest to reach a certain autonomy
on the basis of special privileges.4 Certainly different opinions exist about
adequate solutions of these group problems. These should, however, not be
introduced into the definition of theoretical concepts. According to positive
law, national or ethnic groups can also be the object of racial discrimination.
The question of nationality, in the sense of citizenship (Article 1 (3) of
the above mentioned convention), is not connected to race. The foreigner
may be treated on another basis than the co-national. It is not even required
that all foreigners should be treated on the same basis. There is room for
most-favoured treatment for the nationals of certain States as for instance
within the European Community. If an Italian or French worker is admitted

to work without a work permit in other member States of the Community,
this does not constitute racial discrimination with respect to workers from
outside the Community as for instance Yugoslavs.
Religion is not one of the criteria which would be relevant in order to
distinguish a racial group from another group. It is, however, possible that
the consciousness to constitute a people is based on religious tradition. In
this way, for instance, the Jewish people acquired the quality of an ethnic
group. The antagonism between Israel and Muslim Arab countries is a racial
problem in the sense of Article 1 of the Convention. It may be questioned
whether the same applies in the case of relations between Jews in other
countries and the dominant national group or groups in these countries.
(V). DEFINITION OF RACIAL DISCRIMINATION
The concept of discrimination in general has been discussed above. In the

special case of racial discrimination it is required that:
- there take place a certain action or omission described as distinction,
exclusion, restriction or preference;
- that the act or omission be based on certain grounds;
- that the action must have a certain effect: that of nullifying or impairing
the recognition, enjoyment or exercise of human rights and fundamental
freedoms in certain fields.
All three requirements have to be fulfilled.
(vi). RELATION TO HUMAN RIGHTS
Relations between racial discrimination and the protection of human rights

exist in two directions: racial discrimination takes place if the enjoyment of
human rights is denied (cf. Article 5 of the Convention). Human rights for
this reason are listed in the Convention. This catalogue, however, is not
limitative but only exemplary. It does not exclude the. possibility that racial
discrimination may occur where the general rule of equality is not respected.
The respect for human rights may also limit the non-discrimination rule
and its consequences. This is shown by Article 4 of the Convention which
stipulates that certain kinds of dissemination of ideas are punishable offences
and are to be declared illegal, and that the prohibition of certain organiza-
tions is made dependent on whether their activities are or are not carried out
in conformity with the guarantees of human rights. In this way a conflict
between two elements of the legal order arises. The guarantees of human
rights may, in the interest of freedom, limit the possibility of prohibiting acts
of racial discrimination. Consequently, it should not be argued that all human
rights may be limited (according to Article 29 of the Universal Declaration)
by the just requirements of public order (to which also belongs the rule of
non-discrimination as to race), because Article 30 of the Declaration-on the
other hand-protects all rights and freedoms against destruction. This dispo-
sition clearly restricts the possibility of limiting such rights and freedoms,
preventing their essential content from being undermined.
(vii). wrERNAL MEASURES 0F IMPLEMENTATION
States parties are obliged to take all legislative, judicial and administrative
measures in order to prevent, to prohibit and eradicate all forms of racial
discrimination within their own territories. This implies that the constitu-
tional order of the States provides for full equality of all citizens and that a
special provision is included in order to oblige legislative, judicial and admin-
istrative organs to take the necessary measures to avoid any discrimination
based on race. A general rule which provides for equality before the law is
not sufficient (cf. the Convention, Article 2(l) preamble and litera (a) and (b)).
The States are also obliged to review existing laws and regulations (lit.(c))
and to ensure effective legal protection and remedies against discriminatory
measures taken by State organs as well as by private organizations or indi-
viduals (Article 2(d) combined with Article 6).
Special emphasis is made in declaring illegal and prohibiting organizations
which promote and incite racial discrimination (Article 2(d) and Article 4(b)).
Here the question is raised whether prohibition is in all cases an appropriate
measure. The Convention requires appropriate means as required by circum-
stances. Does this mean that the Member State is obliged to take repressive
measures when it may be foreseen that they increase the danger of forcing
such organizations to go underground? It is, on the other hand, expressly
stated that the States parties dispose of a certain discretion (see Article 2(2):
when the circumstances so warrant) with regard to special temporary mea-
sures in favour of certain racial groups.
Administrative measures are also foreseen in the fields of teaching educa-
tion, culture and information with a view to combating racial prejudices and
to promoting understanding, tolerance and friendship among racial or ethnic
groups (Article 7). This opens up a vast field of activities. It is not limited to
purely verbal propaganda or statements but comprises also the establish-
ment of mechanisms for conciliation and other preventive measures. If one
recalls that the concept of race is based largely on the prejudiced view that
another social group is different and for this reason inferior in value, the
importance of such precautionary arrangements is evident. Some States with
racial problems lay considerable stress upon such activities and have reached
remarkable results. The work of the Race Relations Boards and Community
Councils in the United Kingdom should be mentioned as an interesting example.a7
In this field, however, not too much should be expected from direct and
official State activity. Such efforts decidedly need the initiative from social
groups in order to be effective.
Among the measures to be taken in the internal order, penal prosecutions
are only mentioned here as a last resort. Though in certain extreme cases
repression by drastic remedies cannot be avoided, it will often only have an
external effect without going to the crux of the problem. One should not
forget that racial discrimination is a kind of social disease and that the results
of fighting other social diseases by punishments are not very encouraging.
The Convention goes very far in obliging States parties to declare all kinds
of discriminatory acts as offences punishable by law. Although incitement to
acts of violence is in general punishable without respect to motivation, in-
citement to racial discrimination as such and its constituent elements are
difficult to prove. The punishment of the simple dissemination of ideas based
on racial superiority is hardly compatible with the freedom of thought and of
opinion, and does not promise positive results. It seems hopeless to fight
against ideas with penalties. They are better fought with arguments.
(viii). INTERNATIONALMEASURESO~IMPLEMENTATION
Since racial discrimination ignores State boundaries, internal measures are

not sufficient. They have to be complemented by measures on the interna-
tional level. The first step towards an international consensus regarding this
evil has been made. In conformity with the basic pronouncement of the
Charter, the States parties to the Convention have expressly condemned
racial discrimination as such (Article 2(l)), and two of its forms: racial segre-
gation and apartheid. They have undertaken to eradicate all practices of this
nature in territories under their jurisdiction (Article 3). This territorial limi-
tation pays tribute to the principle of domestic jurisdiction (Article 2(7) Charter).
The establishment of the Committee for the Elimination of Racial Discrimi-
nation (CERD) with machinery to supervise the observance of the Conven-
tion has the effect of installing a pillory at which States parties have to
confess what they do inside their territories. The Committee has at the same
time the task of acting as a conciliator in controversial situations (Article
11-13). It may be authorized by special declarations to examine petitions of
individuals in order to seek redress (Article 14).
A step towards declaring extreme forms of racial discrimination-specific-
ally apartheid-to be crimes under international law was taken with the
adoption by the General Assembly in 1973 of the International Convention on
the Suppression and Punishment of the Crime of Apartheid.s
Since its first Session in 1946, the General Assembly has been concerned
with the race conflicts in southern Africa. All kinds of methods and proce-
dures available have been employed by the UN in its struggle against racial
discrimination and apartheid in this country. By different means UN organs
have tried to isolate South Africa politically, culturally and economically.g
When it appeared that strenuous efforts over thirty years had met with no
decisive success, the General Assembly in 1974 excluded the delegates of
South Africa from its deliberations. This is not the place to discuss whether
this measure was taken in conformity with the Charter, which, in Article 6,
requests a recommendation of the Security Council before the General As-
sembly may expel a Member which has persistently violated the Principles
of the Charter. The question only arises as to whether such a measure is

appropriate to enforce the rule of non-discrimination. Doubts expressed are
similar to those expressed with regard to the question whether penal pun-
ishment is appropriate to heal the evil of racial discrimination. With the
exclusion of a State, the Organization renounces its possibilities of control.
Isolation is likely to create obstinacy and embitter conflicts. Has not the
Organization of United Nations been created in order to solve conflicts and
not to aggravate them?
At the end of this study regarding racial discrimination an appraisal is
expected. Can it be said that all the measures introduced in order to limit
racial discrimination have had a positive effect? Certainly at present one is
better informed on existing problems and States have been induced to pay
more attention to them. Some have even revised their policy. Public opinion
is more vigilant. This is not negligible.
(d). Religious discrimination

At the end of this chapter some remarks about the tendency to eliminate
religious intolerance in protecting any human being against discrimination
on the ground of religion or beliefs are appropriate.
(i). HISTORY
Some authors are of the opinion that the idea of the protection of human
rights and freedoms as a whole had first been developed in the field of
religious freedom. In so far as they refer to attempts made at the beginning
of the Modern Age to destroy the unity of the Roman Catholic Church, this
thesis seems problematic. Reformers such as Luther, Calvin, Zwingli or the
Founders of the Church of England did not seek an absolute freedom of the
individual, as such, but tried to replace an existing hierarchy by a new one. It
is, however, true that they largely based their struggle against the tradi-
tional ecclesiastic rulers on theories developed during the Italian Renais-
sance which recognized, for the human being as such, authentic and autonomous
rights not derived from divinity. A long time elapsed before constitutional
rights were guaranteed to individuals.
(ii). RELIGION AND RELIGIOUS FREEDOM
Besides the problem of historical legitimacy, there are much more difficult
ones of an intrinsic character. There is a multitude of religions and not all of
them consider the concept of tolerance as an element of their doctrine.40 If a
religion demands that its followers spread its own faith and win new adher-
ents there may ensue a situation in which the rules of this religion come into
collision with the principle of religious tolerance. This problem has been
formulated in the following extreme terms: Freedom of religion and con-
science does not only imply the right to profess ones own religion, but also
the right to engage in convincing others that its own doctrines are right-it
includes the right of dogmatic intolerance (W. Kaegi). The author appar-
ently has in mind what certain religions may expect from their followers
instead of asking himself what a free society is willing to concede to them: the
individual right to profess a certain religion, to exercise this religion, to
abandon a religion or confession and to be protected against any discrimina-
tion by public organs as well as by other citizens on grounds of religion or
belief. He is silent on the limits which this guarantee attaches to religious
activities: i.e. respect for the religions of others. His formulation is, however,
illustrative of the possible collision between the freedom of religion and reli-
gion itself. The same may occur with regard to agnostic or atheistic beliefs.
Where the same existence of transcendental beliefs is denied categorically,
there is no room for the respect of theistic thoughts and religion.
(iii). PROTECTION AGAINST INDIVIDUALS
Another problem is created by the fact that freedom of religion and con-
science have to be protected not only against the State and those who exer-
cise public power but also against interference by other individuals or private
groups.
(iv). STATE AND RELIGION
Nearly all Constitutions of modern States contain more or less elaborate

guarantees for freedom of religion and conscience, and for protection against
discrimination on grounds of religion or belief. They vary according to the
position the religious community or communities hold in the State and in its
society. There are still States where a State religion exists and certain
positions in public life are only accessible to its true followers. There are
States which, though giving a certain preference to one religion or confes-
sion, nevertheless tolerate others. There are totally neutral States which
treat all theistic and also non-theistic or atheistic beliefs on an equal basis,
and finally there are many States where atheism is officially favoured and
where theistic religious communities are in danger of finding themselves in
difficult situations.
(V). INTERNATIONALGUARANTEES
In view of these divergent situations it is not surprising that the idea of an

international guarantee for the principle of religious tolerance gained recog-
nition in this century.
1) In the Peace Treaties ending the First World War the question of
religious freedom appeared predominantly in connection with the protection
of national minorities-which often were also at the same time religious
minorities. The Covenant of the League of Nations mentioned this problem,
however, only in connection with the responsibility of Mandatories in African
countries, under conditions which will guarantee freedom of conscience or
religion, subject only to the maintenance of public order or morals, the prohi-
bition of abuses such as slave trade . . (cf. Article XXII, para. 5 and 6).
This mention appears rather marginal.41
2) During and after the Second World War the problem became of greater
importance after religious groups-the Jewish communities among others-
had been persecuted by National Socialists. In the joint Declaration by the
United Nations of January 1, 1942, the principle of religious freedom-not
only of the protection of religious minorities-has a predominant place:
that complete victory over their enemies is essential to defend. religious freedom, and to
preserve human rights and justice in their own lands as well as in other lands,, ,
In this formulation a positive approach apparently prevails, directed to the

active defence of religion.
3) This positive approach has not been incorporated into the United Na-
tions Charter. Though proposals to do so were presented, the Charter as
adopted refers only to human rights and fundamental freedoms in general,
leaving it open whether the freedom of religion is such a fundamental right.
It is added, however, that the respect for these rights is incompatible with
distinctions also as to religion.4 From this reference alone it cannot be
concluded that the freedom of religion is presupposed. If one compares the
three other criteria: race, sex and language, there is also no corresponding
freedom as regards race.
4) The Universal Declaration of Human Rights, adopted on 10 December
1948 by the General Assembly as a common standard of achievement for all
peoples and all nations, without creating legal obligations,4 contains a right
to freedom of religion-together with the rights to freedom of thought and
conscience (Article 18). It is guaranteed without distinction of any kind such
as. religion (Article 2(l)). It has been noted that the relations between this
right and the prohibition of religious discrimination raise special problems.44
For one who is enjoying freedom of religion and exercising this right may
easily come into a situation where he neglects the freedom of those who
follow other creeds or beliefs.45
5) When the Declaration was transformed into a binding legal instrument,
namely the International Covenant on Civil and Political Rights of 1966,46the
problem of these precarious relations was taken care of. The guarantee in
Article 18(l) of the Covenant clearly states that this right shall include
freedom to have and to adopt a religion or belief of his choice, not only, as
according to Article 18 of.the Declaration, to manifest his religion or belief.
Here a positive approach, as in 1942, appears again. The right to have or to
adopt a religion or belief is no longer subjected to limitations. Only the
freedom to mmzifeestones religion or beliefs may be subject. to. . limitations
and the law may prescribe such limitations only if they are necessary to
protect certain interests. On the other hand, the clause regarding prohibited
discrimination (Article 2(2)) does not refer to the substance of the guaranteed
Karl Josef Partsch
rights and freedoms as such, but to their exercise. The result is that manifes-
tations of religion or belief have to be exercised in a manner which does not
discriminate against the followers of other religions or beliefs.
The field in which religious freedom may come into conflict with non-
discrimination on grounds of religion has become narrower. It does not ex-
tend to the formulation of the doctrine but is limited to acts of the followers
when manifesting their creed in relation to others. Here tolerance has to be
respected. In extreme cases this rule is sanctioned: Any advocacy of. religious
hatred, that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law (Article 20).
6) Even before the Covenants got their final form the project was taken up
in the organs of the United Nations in 1962 with the view to elaborating a
special Declaration and Convention on the Elimination of All Forms of Reli-
gious Intolerance, distinct from the Declaration and Convention on the Elimi-
nation of All Forms of Racial Discrimination. This separation of religious and
racial discrimination was apparently motivated by political considerations:
the conflict between Arab Countries and Israel should not come under the
instruments regarding racial discrimination.47 Separate instruments regard-
ing these two matters are, however, also justified for reasons of substance
apart from political considerations. Religion as such is based on positive
values, race is not. Even if there is consensus that intolerance based on race
as well as on religion should be eliminated in the interest of the international
community, the situation with regard to these two phenomena differs. Reli-
gious strictness is a counter value to religious tolerance. Racism is merely
based on a prejudice, on a bias and is not based on a value which has to be
brought into balance with racial tolerance.
This fundamental difference between the two problems may explain why
nearly twenty years have been spent by the General Assembly and its Third
Committee, by ECOSOC, the Commission on Human Rights and the Sub-
commission on Prevention of Discrimination and Protection of Minorities in
discussing the Declaration and Convention on Religious Discrimination, while
the Racial Declaration and Convention were drafted and accepted in less than
six years. In 1981 the Declaration was finally adopted by the General Assem-
bly. 48 This delay is due only in part to controversies about procedure. For
some time work continued simultaneously on drafting the Declaration as well
as the Convention, until the General Assembly decided at its twenty-seventh
Session (by Resolution 3027) to give priority to the completion of the Declara-
tion before resuming consideration of the draft Covenant.
NOTES
1. See, generally, Rosalyn Higgins: The Developnlent oflntemational Law through the
Organs of the United Nations, Oxford University Press, London (1963); Rupert
Political
Emerson: Self-Determination Revisited in the Era of Decolonization, 9 Occasional Papers
in International Affairs, Harvard University, Cambridge, Massachusetts (1964); Harold S.

Johnson: Self-Determination within the Community of Nations, A.W. Sijthoff, Leyden
(1967); S. Calogeropoulos-Stratis: Le droit des peuples a disposer deux-mbmes, Etabl.
Emile Bruyant, Bruxelles (1973); A. Rigo-Sureda: The Evolution of the Right of Self-
Determination-A Study of the United Nations Practice, A.W. Sijthoff, Leyden (1973); and
UN dots. E. 1979. XIV.5 and EiCN 4isub. 21406/Rev.i(1979).
2. Foreign Relations of the United States, Washington, 1918, Supp. 1, Vol. 1, 12 and
C.C. Hyde: International Law, Chiefly as Interpreted and Applied by the United States,
2nd. ed., Boston, Little Brown and Company (1947) p. 367.
3. Cf. Art. 22 of the Covenant of the League of Nations.
4. Cf. Sarah Wambaugh: Plebiscites since the World War, with Collection of Official
Documents, Washington 1933.
5. Cf. Harold Nicolson: Peace making 1919 (1933), p. 193.
6. For examples, see Alfred Cobban, National Self-Determination, 2nd edition, Uni-
versity of Chicago Press, Chicago, 1947.
7. Hans Kelsen: The Law of the United Nations, London, Stevens and Sons Ltd. (19511,
p. 52 seq.
8. Cf. the abundant documentation delivered by Hu Chou-Young: Das
Selbstbestimmungsrecht als eine Vorbedingung des vdlligen Genusses der Menschenrechte,
52 Ztircher Studien zum internationalen Recht, Polygraphischer Verlag, Zurich (1972), pp.
112-216.
9. Rupert Emerson: Self-determination 65 AJIL (1971), p. 463.
10. Cf. Clyde Eagleton: Excesses of Self-Determination, 31 Foreign Affairs (July 19531,
p. 592; Joseph L. Kunz: The principle of self-determination of peoples, particularly in the
practice of the United Nations, in: Kurt Rabl (ed.): Znhalt, Wesen und gege*lwartige
praktische Bedeutung des Selbstbestimmungsrechts der Volker, Verlag Robert Lerche,
Munich, (1964), pp. 128-170.
11. Adopted 24 October 1970-cf. Annex to Resolution 2625 (XXV).
12. This is neglected by Karl Doehring: The Right of Self-Determination in International
Law, 14 Berichte der Deutschen Gesellschaftfur Volkerrecht, C.F. Mtiller, Karlsruhe (1973).
13. With regard to the important case of Bangladesh cf. Ved. P. Nanda: Self-determination
in international law: the tragic tale of two cities-Islamabad (West-Pakistan) and Dacca
(East Pakistan), 66 AJIL (1972) pp. 321-336 and Commission Internationale des Juristes:
Bangladesh: A study in International Law (1972).
14. Cf. A Cassese: Self-determination of Peoples, para 7 in: L. Henkin (ed.): Interna-
tional Bill of Rights-The Covenant on Civil and Political Rights, Columbia University
Press, New York (1981).
15. Gerhard Leibholz: Equality as a principle in German and Swiss constitutional law,
in: Politics and Law, A.W. Sijthoff, Leyden (1965), p. 302.
16. Ibid, p, 303.
17. Ibid, p. 304.
18. J.D.B. Mitchell: Constitutional Law, 2nd ed., W. Green & Son Ltd. Edinburgh
(1968) p. 56.
19. Hyder: Equality of Treatment and Trade Discrimination in International Law, The
Hague (1968), p. 14.
29. N. Robinson: The Universal Declaration of Human Rights, Institute of Jewish Affairs-
World Jewish Congress, New York (1958) p. 104; Rene Cassin: La Declaration universelle
et la mise en oeuvre des droits de lhomme, RCDAI (1951) p. 277.
21. Last para. of the Preamble.
22. Cf. N. Robinson: op. cit. (note 20) p. 110.
23. Cf. K.J. Partsch: Die Rechte und Freiheiten der Europaischen Menschen-
rechtskonvemion, Duncker e.Humblot, Berlin (1966) p. 90, Note 295; Jean de Meyer: La
Convention europienne des droits de lhomme et le Pacte international relatq aux droits
civils et politigues, Centre international detudes et de recherches europeennes, Cours 1968

Edition Zega-Henle, Belgique (1969) p. 26.
24. The drafting history is reported in detail by Egon Schwelb: The International Con-
vention on the Elimination of All Forms of Racial Discrimination, 15 ICLQ (1966) p. 997
(1018); see also Wilhelm Kewenig: Der Grundsatz der Nicht-Diskriminierung im Volkerrecht
der internationalen Handelsbeziehungen, Band 1, Athenaurn Verlag, Frankfurt/M, (1972);
and E.W. Vierdag: The Concept of Discrimination in International Law, Martinus Nijhoff,
The Hague (1973) p. 120.
25, Cf. Egon Schwelb: op. cit. (note 24), p. 109.
26. In Art. l(3), 13(2)b, 55(c) and 76(c).
27. De Lolme, Constitution de lAngleteme, Amsterdam 1778.
28. A.V. Dicey, Law of the Constitution, 3rd edition, London 1889.
29. Cf. the exhaustive documentation in: United Nations Action in the Field of Human
Rights, 2nd. ed. 1980 (Sales No. E.79 XIV 6).
30. GA Res. 2263 (XXII) (1967).
31. Cf. Pierre van den Berghe: Race and Racism, a comparative perspective, New York
(1967), p. 9.
32. See texts of these Declarations and that adopted in 1978 in Declaration on Race and
Racial Prejudice (Paris, Unesco, 1979).
33. E. Schwelb, op. cit. (note 24), p. 996 seq.; N. Lerner: The UN Convention on the
Elimination of All Forms of Racial Discrimination, 2nd ed., Sijthoff and Noordhoff,
Alphen aan den Rijn (1980), pp. 25-33.
34. J. Delbriick: Die Rassenfrage als Problem des Volkerrechts und nationaler Rechtsord-
nungen, Athenaurn Verlag, Frankfurt (1971) p. 18.
35. Cf. Article l(1) of Racial Discrimination Convention.
36. Cf. E. Schwelb, op.cit. (note 24) p. 1001.
37. See S. Abbot (ed.), The Prevention of Racial Discrimination in Britain, Oxford
1971.
38. See Article XV(l) of the Convention. For more details, see Part II, sub-section I,
Chapter 11.
39. See chapter 10 infra.
40. A. Krishnaswami: A Study of Discrimination in the matter of Religious Rights and
Practices, United Nations (Sub-Commission on Prevention of Discrimination and Protection
of Minorities), New York (1960) Introduction (Sales No. 60 XIV.2).
41. E. Luard (ed.): The International Protection of Humox Rights, New YorkWashington,
D.C. (1967) pp. 22-38.
42. A. Krishnaswami, op. cit. (note 40) p. 12-An express reference to religion-always
in connection with the without discrimination clause is to be found in article l(3), 13(l)b,
55(c) and 76(c) of the Charter.
43. Cf. M. Ganji: International Protection of Human Rights, Geneva/Paris (1962), p.
165.
44. A. Krishnaswami, op. cit. (note 40) p. 15.
45. Cf. Article 29(2) of the Declaration.
46. It came into force on 23 March 1976.
47. Cf. supra under para. 72.
48. Cf. the drafting history in: United Nations Action in thefield of Human Rights, 2nd.
ed. (1980); and UN dot. EiCN-411145 (1973), A/9322 (1975), E/CN-411305 and Add. 1-3, and
E/CN-4/1337. The Declaration on the Elimination of All Forms of Intolerance and Discrimi-
nation Based on Religion or Belief was proclaimed by the General Assembly in December
1981 in resolution 36/55
49. See Chapter 10, infra.
5 Survey of the Positive
International Law of
Human Rights
INTRODUCTION: DIVERSITY OF SOURCES

Since the Second World War international human rights law has been devel-
oping in an unprecedented way and has become a very substantive part of
international law as a whole. International organizations, whose concern is
directed at the promotion of the well-being of the human person (groups as
well as individuals) or certain categories of human persons, have been most
instrumental in this respect. Very prominent is of course the United Nations,
but much credit should also be given to its Specialized Agencies, notably the
IL0 and Unesco. Regional intergovernmental organizations, such as the Coun-
cil of Europe and the Organization of American States, have also greatly
contributed to the development of international human rights law. Member-
ship, political climate and the particular field of competence of the various
organizations concerned have an important bearing upon the content and
nature of the human rights instruments elaborated by these organizations.
This development of positive international human rights law, has been
inspired by, among other factors, the desire to establish a comprehensive
system for the promotion and protection of human rights. This idea was
reflected in the mandate extended in 1946 to the UN Commission on Human
Rights to prepare an international bill of rights, which led eventually to the
adoption of the Universal Declaration of Human Rights in 1948 and of the
International Covenants in 1966. Other comprehensive instruments, cover-
ing a large number of human rights, have been drawn up at the regional
level. They are the American Declaration of the Rights and Duties of Man of
1948, the American Convention on Human Rights of 1969, the European
Convention on Human Rights of 1950 with its Five Protocols, and the Euro-
pean Social Charter of 1961.
It should also be noted that a number of specific and separate human rights
instruments, inasmuch as they are interlinked and subject to a unified im-
plementation system, may be considered to form, in toto, a comprehensive
and consistent body of law and to come close to the concept of one general
instrument. The international conventions and recommendations of the IL0

are a case in point. They represent, in their totality, what is considered a
corpus jutis of social justice.
The other approach, prevalent in developing positive international human
rights law, consists of the elaboration of human rights instruments with a
more specific or limited purview. Certain categories of persons may need
special attention as is reflected in specific international instruments aiming at
the protection of refugees, stateless persons, migrant workers, children,
disabled persons, etc. Specific instruments may also be drawn up with a view
to defining and safeguarding certain rights in a more elaborate manner, e.g.
the right to freedom of association or the right to education. Other specific
instruments seek to eliminate or prevent focus on one specific form of dis-
crimination, such as race or sex, and aim at the elimination of that special
type of discrimination in relation to the whole field of human rights. The UN
Declaration and the International Convention on the Elimination of All Forms
of Racial Discrimination and the Declaration and Convention on the Elimina-
tion of Discrimination against Women are such instruments. Non-discrimination
instruments may also focus on one particular human right in order to guaran-
tee the exercise of that right without discrimination as to race, colour, sex,
language, religion, political or other opinion, national or social origin, eco-
nomic condition. The IL0 Convention (No. 111) concerning Discrimination
in Respect of Employment and Occupation and the Unesco Convention against
Discrimination in Education are pertinent examples.
Whereas general human rights instruments result from a comprehensive
and systematic approach and reflect a human rights concern in the wider
sense, specific human rights instruments may result from the work of organi-
zations or agencies with a competence or a responsibility in a particular area.
Such specific instruments may also constitute a reply to political or social
concerns of an urgent and widely-felt character.
In order to meet urgent demands of large parts of the international com-
munity a wide practice has developed, particularly in the UN of incorporat-
ing human rights norms in declarations or resolutions. Such instruments may
also prove, depending upon circumstances and conditions, to be important
sources of international human rights law. Some such instruments have be-
come extremely important and may have more influence than conventions.
The Universal Declaration of Human Rights and the Declaration on the
Granting of Independence to Colonial Countries and Peoples are typical ex-
amples. In these days of law-making as a collective undertaking in interna-
tional organizations, it is practically impossible to describe positive international
human rights law on the basis of a separation between conventional instru-
ments and other instruments, such as declarations.
The following paragraphs do not purport to give a full treatment of sub-
stantive human rights law. They are intended as an outline, showing various
sources of the international law of human rights. In this respect, attention
Survey of International Law of Human Rights 89
will be paid to general and specific instruments, drawn up in the form of

conventions or declarations, and briefly to such other sources of human rights
law as customary law, general principles of law, and decisions of international
organs. It should be taken into account that these various sources are not
necessarily watertight and separate categories. In many instances their ef-
fects are cumulative.
Such cumulation of sources can be found in relation to the Universal Decla-
ration of Human Rights, which as a declaration is perhaps not binding in the
same sense as a treaty or convention, but which, through a process of devel-
opment by practice and custom, contains a great deal of law generally recog-
nized as binding upon members of the international community. Moreover,
many of the rights and freedoms enshrined in the Universal Declaration have
been converted into treaty law in later international instruments.
1. GENERAL INSTRUMENTS
The most basic instrument laying the foundation of international human rights
law is the Charter of the United Nations. The various human rights clauses of
the UN Charter speak in terms of promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion. Particularly important is article 56, contain-
ing a pledge and as such an obligation for UN members with regard to the
achievement of the purposes set forth in the preceding article, which includes
a human rights clause along the lines of the formula cited above. It must be
conceded that the term human rights and fundamental freedoms is not
defined in the Charter, but it would be inconceivable if this frequently used
term of the Charter had no meaning. It must therefore be assumed that this
term stands for elementary human rights norms as discussed above in Chap-
ter 3. It should be noted in this context that in case of a conflict between
obligations undertaken under the UN Charter and obligations arising from
other international instruments, the obligations under the Charter shall pre-
vail (article 103 of the UN Charter).
The elaboration of the generally-worded human rights clauses of the UN
Charter took the form of the International Bill of Human Rights, which
encompasses (1) the Universal Declaration of Human Rights, (2) the Interna-
tional Covenant on Economic, Social and Cultural Rights, (3) the Interna-
tional Covenant on Civil and Political Rights, (4) the Optional Protocol to the
International Covenant on Civil and Political Rights. This International Bill
of Human Rights and its component parts (except the Optional Protocol which
deals with a method of international implementation) are general instruments
of substantive international human rights law. They present, with a view to
establishing a world-wide system for the promotion and protection of human
rights, a comprehensive enumeration of a wide variety of human rights and
fundamental freedoms, in the recognition that the inherent dignity and the
equal and inalienable rights of all members of the human family is the founda-
tion of freedom, justice and peace in the world (para. 1 of the preambles of
these instru.ments).
On the regional level, the American Declaration of the Rights and Duties of
Man and the American Convention on Human Rights, both elaborated within
the Organization of American States, as well as the European Convention for
the Protection of Human Rights and Fundamental Freedoms and the Euro-
pean Social Charter, drawn up within the framework of the Council of Eu-
rope, form the counterparts of the universal instruments noted above.
A close examination of these world-wide and regional instruments for the
promotion and protection of human rights reveals much similarity between
the texts and also striking examples of identity in some respects. This is due
to the fact that the authors of the European Convention and of the American
instruments paid a great deal of attention to the drafting work performed in
the United Nations. It should, moreover, be taken into account that in the
early days of the UN, when a great deal of drafting work was carried out, the
majority views were determined by (Western) European and American rep-
resentatives. It is therefore no surprise that, by and large, the points of
similarity exceed the differences as between the world-wide and regional
general instruments, in particular as far as the orientation and formulation of
substantive human rights law is concerned.
The general instruments deal with three categories of human rights. First
are the rights which aim at protecting the liberty and the physical and moral
integrity of the human person, including: the right to life; freedom from
slavery, servitude and forced labour; freedom from torture or from cruel,
inhuman or degrading treatment or punishment; the right to freedom from
arbitrary arrest and detention; the right to a fair trial; the right to privacy;
and the right to freedom of thought, conscience and religion. The second
group includes political rights, in particular: the right to freedom of opinion
and expression; the right to peaceful assembly and to freedom of association;
the right to take part in the conduct of public affairs; and the right to vote, to
be elected and to have access to public service. The final category contains
economic, social and cultural rights such as: the right to work, to free choice
of employment and to just and favourable conditions of work; the right to
form and join trade unions, including the right to strike; the right to social
security; the right to rest and leisure; the right to an adequate standard of
living, including food, clothing, housing, medical and social services; the right
to education; and the right to participate in cultural life and to enjoy the
benefits of scientific progress.
The general human rights instruments have certain common features which
are very much part of human rights law. First the principle of equality or
non-discrimination which is in fact a guiding element of all the instruments
and which represents the idea of justice in human rights law. Another com-
mon feature is that of limitations which may be applied in relation to the
exercise of rights and freedoms. Some instruments, in particular the Univer-

sal Declaration and the American Declaration as well as a promotional
instrument like the International Covenant on Economic, Social and Cultural
Rights, contain a general limitation clause in relation to the instrument as a
whole. The limitation clause mentions such factors as respect for the rights of
others, the just requirements of morality, public order and the general wel-
fare in a democratic society. On the other hand, the instruments which deal
mainly or exclusively with civil and political rights-the International Cove-
nant on Civil and Political Rights as well as the European and American
Conventions-are more precise and have special and differentiated limitation
clauses in connection with individual articles. These instruments contain,
however, also a general limitation clause, allowing States parties to derogate
from their obligations in time of public emergency, with the proviso that,
from certain elementary rights, no derogation is allowed under any
circumstances.
A third common feature is the notion of duties or responsibilities. This
notion is particularly well developed in the American Declaration on the
Rights and Duties of Man, which outlines the duties of every person in no less
than ten articles. Other instruments are less explicit in this respect and
contain in the preamble (the International Covenants) or in a special provi-
sion (the Universal Declaration and the American Convention) a reference to
the duties of every person to the community in which alone-as the Universal
Declaration puts it (article 29, para. I)-the free and full development of the
human personality is possible.
It should also be noted that the general human rights instruments-insofar
as they are drawn up in the form of conventions-contain machinery for
international implementation. The various institutions and procedures are
described elsewhere. Only a few brief remarks may be made here. Whereas
the functions to be carried out by institutions based on world-wide conven-
tions are mainly concerned with information, conciliation and recommenda-
tion, the tasks to be performed by the organs provided for in the European
and American Conventions are more in the nature of legal adjudication.
Inasmuch as such institutions or organs are instrumental in interpreting and
developing substantive human rights law, the world-wide institutions are
more likely to perform work of a diplomatic or political character while, as is
borne out by the practice of the European Commission and Court, the re-
gional organs tend to follow a judicial approach.
The Universal Declaration and the American Declaration do not contain
special implementation machinery, which has not prevented them from playing
a dynamic role in the development of international human rights law. These
declarations have not only been of great significance as reference material for
the drafters of later international instruments, but have also been used as
guiding standards of a moral and political character by many organs of the
international society. The Universal Declaration is functioning in that sense
in the work of the UN Commission on Human Rights and other UN organs,

while the American Declaration is still the main standard of reference for the
Inter-American Commission on Human Rights.
Noting the various human rights instruments, it would seem that neither
the form in which they are embodied (conventions or declarations) nor the
fact that they include special implementation machinery have, per se, been
decisive factors in terms of their law-creating or law-developing functions.
Only an analysis of the actual impact of such instruments on the international
and national levels can shed more light on this question.
2. SPECIFIC INSTRUMENTS
(a). The protection of the human being in his very existence

Still under the shock of the extermination of large groups of human beings
during the Second World War, the UN General Assembly adopted, on 11
December 1946, resolution 96 (I) on the crime of genocide and stated in the
first paragraph of that resolution: Genocide is a denial of the right of exis-
tence of entire human groups, as homicide is the denial of the right to live of
individual human beings; such denial of the right of existence shocks the
conscience of mankind, results in great losses to humanity in the form of
cultural and other contributions represented by these human groups, and is
contrary to moral law and to the spirit and aims of the United Nations. The
same resolution requested the elaboration of a draft convention on the crime
of genocide. Two years later, the Assembly approved in resolution 260 A
(III) (1948) the Convention on the Prevention and Punishment of the Crime
of Genocide. This crime under international law is defined as follows in the
Convention: Genocide means any of the following acts committed with in-
tent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such: (a) killing members of the group; (b) causing serious bodily or
mental harm to members of the group; (c) deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or
in part; (d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group. The Con-
vention provides that, in addition to genocide, conspiracy, direct and public
incitement and attempts to commit genocide, as well as complicity in geno-
cide, shall also be punishable.
In the Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity, adopted by the United Nations
General Assembly by resolution 2391 (XXIII) (1968), the crime of genocide is
mentioned among the crimes against humanity to which no period of limita-
tion applies.
The Convention on the Prevention and Punishment of the Crime of Geno-
cide was in many respects a frame of reference for the drafters of the Inter-
national Convention on the Suppression and Punishment of the Crime of

Apartheid, adopted by General Assembly resolution 3068 (XXVIII) (1973).
In this convention States parties declare that apartheid is a crime against
humanity and that inhuman acts resulting from the policies and practices of
apartheid and similar policies and practices of racial segregation and discrim-
ination are crimes violating the principles of international law. The conven-
tion defines the crime of apartheid by listing a number of inhuman acts
committed for the purpose of establishing and maintaining domination by one
racial group of persons over any other racial group of persons and systemati-
cally oppressing them. Among the inhuman acts is mentioned denial to a
member or members of a racial group or groups of the right to life and liberty
of person. The further elaboration is in terms very similar to the genocide
convention. Also the deliberate imposition on a racial group of living condi-
tions calculated to cause its physical destruction in whole or in part appears in
practically identical terms in both conventions. For the rest, however, the
Convention on the Suppression and Punishment of the Crime of Apartheid
goes far beyond the genocide convention in its enumeration of punishable
acts.
(b). The elimination of racial discrimination

Hardly any other human rights concern has been so much in the forefront in
recent times as the effort towards the elimination of racial discrimination.
Racial prejudice and racism were clear features of nazism and led to barba-
rous acts in recent history. Policies and practices based on racial superiority
and racial hatred jeopardize relations among individuals, people and nations.
Racism and racial discrimination constitute a denial of fundamental human
rights and affect the dignity of human beings. The international community
has reacted strongly against that persistent and flagrant form of racism and
racial discrimination, which is manifest in South Africa in the policy and
practice of apartheid and similar types of racial discrimination and segrega-
tion. The evil of racial discrimination is, however, not confined to that region
of the world. In no other field has the development of international human
rights standards attained such dimensions as in the sphere of the elimination
of racial discrimination. Examples of far-reaching types of international legis-
lation are the International Convention on the Elimination of All Forms of
Racial Discrimination of 1965 and the International Convention on the Sup-
pression and Punishment of the Crime of Apartheid of 1973. Outstanding
examples of international case law relating to racial discrimination are the
1971 Advisory Opinion of the International Court of Justice on Namibia, in
particular the interpretation of the human rights clauses of the UN Charter
(see chapter 3, note 8, above), and an opinion of the European Commission of
Human Rights which considers that discrimination based on race could, in
certain circumstances, of itself amount to degrading treatment within the
meaning of article 3 of the European Convention (East African Asians, I,

decision on the admissibility of 10 October 1970).
The prohibition of discrimination on the ground of race is contained in most
of the leading international instruments in the field of human rights. In 1962,
the UN General Assembly requested the preparation of specific instruments
on racial discrimination, viz. a Declaration and a Convention on the Elimina-
tion of All Forms of Racial Discrimination and, in addition to that, a Declara-
tion and a Convention on the Elimination of All Forms of Religious Intolerance
(resolutions 1780 (XVII) and 1781 (XVII)). While the former instruments
were adopted in 1963 and 1965, the general climate was less propitious for
reaching agreement on the content of the instruments relating to elimination
of religious intolerance and, as a result, it was not until December 1981 that
the Declaration on the Elimination of All Forms of Intolerance and of Discrimina-
tion Based on Religion or Belief was adopted by the General Assembly (resolu-
tion 36155).
The United Nations Declaration on the Elimination of All Forms of Racial
Discrimination, proclaimed by the General Assembly in 1963 (res. 1904 (XVIII)),
can be considered as a comprehensive statement of UN philosophy and policy
in regard to discrimination on the grounds of race, colour or ethnic origin.
However, its significance was overshadowed by the adoption, two years
later, of the International Convention on the Elimination of All Forms of
Racial Discrimination (res. 2106 A (Xx)(1965). In terms of human rights law,
and in view of the inclusion in the convention of a special and comprehensive
implementation machinery with the Committee on the Elimination of Racial
Discrimination as its central organ, this convention was a major achievement
on the world-wide level prior to the adoption of the two International Cove-
nants. Closely following the definition of discrimination in the Discrimination
(Employment and Occupation) Convention of the IL0 (1958), and in the
UNESCO Convention against Discrimination in Education (1960), the UN
convention defines racial discrimination as any distinction, exclusion, re-
striction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recogni-
tion, enjoyment or exercise, on an equal footing, of human rights and funda-
mental freedoms in the political, economic, social, cultural or any other field
of public life.
The States parties undertake to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial discrimina-
tion wherever it exists. They undertake not only not to engage in any act or
practice of racial discrimination themselves, but also to prohibit and bring to
an end racial discrimination by any person, group or organization. Much
discussed in relation to freedom of expression and freedom of association
were the provisions, whereby States parties undertake: (a) to declare as an
offence punishable by law all dissemination of ideas based on racial superior-
ity or hatred and also any incitement to racial discrimination; and (b) to
declare illegal and prohibit organizations and propaganda activities which

promote and incite racial discrimination, and to recognize participation in
such organizations as an offence punishable by law. The Convention contains
a long list of rights and freedoms in the enjoyment of which racial discrimina-
tion shall be prohibited and eliminated. The list contains not only most of the
political, civil, economic, social and cultural rights embodied in the Universal
Declaration of Human Rights, but also other rights on which the Universal
Declaration does not contain express provisions, notably the right of access
to any place or service intended for use by the general public, such as trans-
port, hotels, restaurants, cafes, theatres and parks. It is clear that the latter
provision is of considerable significance in view of discriminatory practices
with regard to such facilities.
Taking into account the purpose and scope of the Convention, it may be
assumed that it does not, in itself, guarantee the enjoyment of the various
rights listed. It only requires the respect and exercise of the right of every-
one to protection against racial discrimination and to equality before the law
in the enjoyment of these human rights. Neither does the Convention in itself
preclude possible restrictions on the exercise of these rights, but it does
preclude and prohibit restrictions which are based on race, colour, descent,
or national or ethnic origin. The Convention has now been ratified by a large
number of States and can be considered an important part of international
human rights law.
(c). The protection of women

The United Nations Charter refers in its preamble to equal rights of men and
women and all human rights provisions of the Charter explicitly mention
sex as one of the non-discrimination grounds. Many other international
instruments, albeit not specifically aimed at the protection of women, have an
important bearing upon the status of women. These include the Universal
Declaration, both International Covenants on Human Rights, many conven-
tions and recommendations of the IL0 and conventions on prevention of
discrimination such as the Unesco Convention against Discrimination in
Education.
A number of international instruments have been drawn up with the spe-
cial purpose of eliminating discrimination against women and promoting the
emancipation of women. In this respect the UN Commission on the Status of
Women has been instrumental since its inception in 1946. The Declaration on
the Elimination of Discrimination against Women, prepared by the Commis-
sion, was proclaimed by the UN General Assembly in 1967 (res. 2263 (XXII)).
It states that discrimination against women, leading to the denial or limita-
tion of equal rights between men and women, is fundamentally unjust and
constitutes an offence against human dignity. The Declaration calls for the
abolition of existing laws, customs, regulations and practices which discrimi-
nate against women and provides for the establishment of adequate legal
protection for equal rights of men and women. The Declaration contains the
principle of equality of men and women in the field of political rights, stress-
ing womens equal right to vote, to be eligible for election, and to hold public
office and exercise public functions. It proclaims that women shall have the
same rights as men with regard to the acquisition, change and retention of
nationality. Furthermore, the Declaration deals with a number of questions
relating to equal rights of women, married or unmarried, in the field of civil
law and mentions, in particular, property rights and legal capacity, as well as
the movement of persons. It also stresses the principle of equality of status of
husband and wife in the family and it seeks to prohibit child marriage and the
bethrothal of young girls before puberty. Of great importance are the provis-
ions to ensure equal rights with men in education and in the field of economic
and social life. The relevant article on education deals with various aspects of
this equality as regards access to educational institutions; curricula, exami-
nations, teaching staff, school premises and equipment; scholarships and
study grants; continuing education; and it is concerned with the access to
educational information to help in ensuring the health and well-being of fami-
lies. With regard to various aspects of the status of women in economic and
social life, the Declaration deals with the right of women to work without
discrimination on any grounds and with the rights of women workers. It also
contains a provision which is specifically aimed at preventing discrimination
against women on account of marriage or maternity, and it deems measures
taken to protect women in certain types of work, for reasons inherent in their
physical nature, not to be discriminatory.
However, the most significant and comprehensive instrument in this field
is the Convention on the Elimination of All Forms of Discrimination against
Women, adopted by the General Assembly in 1979 (res.341180). In the Conven-
tion, the term discrimination against women is defined to include any
distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women, of human rights and fundamental freedoms in the politi-
cal, economic, social, cultural, civil or any other field. The substantive pro-
visions of the Convention are surveyed below in Chapter 10 and its procedural
provisions are considered in Chapter 11.
A number of the issues covered by this Convention are also the subject of
more specific international instruments relating to the status of women.
The Convention on Political Rights of Women of 1952 provides that women
shall be entitled to vote on equal terms with men without any discrimination;
that women shall be eligible for election to all publicly elected bodies, estab-
lished by national law, and shall be entitled to hold public office and to
exercise all public functions, established by national law, on equal terms with
men and without any discrimination.
Under the Convention on the Nationality of Married Women of 1957, the
Contracting Parties agree that neither the celebration nor the dissolution of
marriage between one of their nationals and an alien shall automatically
affect the nationality of the wife. Neither shall any change of nationality by
the husband during marriage affect the nationality of the wife. In other
words, no change may be made in the nationality of the wife without an
expression of desire on her part for such change. The Convention also pro-
vides that the alien wife of one of the nationals of a Contracting State may, at
her request, acquire the nationality of her husband through specially privi-
leged naturalization procedures.
The Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages of 1962 is aimed at the abolition of customs and
practices of child marriages and the bethrothal of young girls. It provides
that no marriage shall be legally entered into without the full and free con-
sent of the partners, that a minimum age for marriage shall be specified (the
Recommendation of 1965 adopted by the General Assembly on this subject
(res. 2018 (XX)), states that the minimum age shall in any case not be less
than fifteen years) and that all marriages shall be registered in an official
register by the competent authority.
Finally, reference should be made to the Convention for the Suppression of
the Traffic in Persons and of the Exploitation of the Prostitution of Others of
1950. The international law on this question dates back to the beginning of
the twentieth century, and in particular to the efforts of the League of
Nations to suppress the white slave traffic. The States parties to the 1950
Convention agree to punish any person who, to gratify the passions of an-
other, procures, entices or leads away, for purposes of prostitution, another
person or exploits the prostitution of another person, even with the consent
of that person. The Convention asks also for the punishment of any person
who keeps or manages a brothel or similar places.
(d). The protection of children

The need for special protection of children and youth in general is widely
recognized in international human rights law. The Universal Declaration of
Human Rights states that motherhood and childhood are entitled to special
care and assistance and that all children, whether born in or out of wedlock,
shall enjoy the same social protection (article 25, para. 2). The International
Covenant on Civil and Political Rights forbids the imposition of death senten-
ces on persons below eighteen years of age (article 6, para. 5); and it contains
special rules for accused juvenile persons and juvenile offenders (article lo),
and in relation to criminal procedure (article 14, para. 4). The same covenant
has a special article on the right of every child to protection on the part of his
family, society and the State. This article states also that every child shall be
registered immediately after birth and shall have a name as well as the right
to acquire a nationality (article 24). In the Genocide Convention the enumera-
tion of acts which amount to genocide, include the forcible transfer of children
of one group to another group (article 2(e)). The International Covenant on

Economic, Social and Cultural Rights prescribes special measures of protec-
tion and assistance for all children and young persons in the economic and
social field, in particular by forbidding child labour and employment harmful
to morals or health or dangerous to life (article 10). The IL0 has adopted a
great number of texts fixing a minimum age for admission to employment,
prohibiting night work of young persons, providing for more favourable con-
ditions, guidance, apprenticeship and vocational training. Furthermore, the
Geneva Convention relative to the Protection of Civilian Persons in Time of
War (Convention IV) provides for special measures of protection and care for
children under fifteen, who are orphaned or separated from their families as a
result of the war (article 24), while the same convention has also a protection
article for children in occupied territories (article 50).
The need for special safeguards and care for children is the principal motiva-
tion of the Declaration of the Rights of the Child, proclaimed by the General
Assembly in 1959 (res. 1386 (XIV)). It sets forth, in the form of ten princi-
ples, a code for the well-being of every child without any exception whatso-
ever and without any discrimination. The Declaration provides that the child
shall be given opportunities and facilities by law and by other means to
enable him to develop physically, mentally, morally, spiritually and socially
in a healthy and normal manner and in conditions of freedom and dignity. The
best interests of the child shall be the paramount consideration in the enact-
ment of laws for this purpose. The child shall be entitled from his birth to a
name and a nationality. The Declaration also deals with the enjoyment by the
child of the benefits of social security and the right to adequate nutrition,
housing, recreation and medical services. A special provision deals with physi-
cally, mentally or socially handicapped children. The Declaration proclaims
that the child is entitled to receive education which will be free and compul-
sory, at least at the elementary stages. The child shall be protected against
all forms of neglect, cruelty and exploitation and shall not be the subject of
traffic in any form. Furthermore, a child shall not be admitted to employment
before reaching an appropriate minimum age nor be permitted to engage in
any occupation or employment which would prejudice his health or education
or interfere with his physical, mental or moral development. Finally, the
Declaration states that the child shall be protected from practices which
foster racial, religious or any other form of discrimination and shall be brought
up in a spirit of understanding, tolerance, friendship among peoples, peace
and universal brotherhood. The latter aspect of care for children and young
persons has been further developed in the Declaration on the Promotion
among Youth of the Ideals of Peace, Mutual Respect and Understanding
between Peoples, proclaimed by the UN General Assembly in 1965 (res. 2037
(XX)). Pursuant to a proposal submitted by Poland in 1978, the Commission
on Human Rights began considering a draft convention on the Rights of the
Child (Commission resolutions 20 (XXXIV), 19 (XXXV), 36 (XXXVI) and 6
(XXXVII) and the General Assembly requested it to give the highest prior-
ity to completing the draft in 1982 (res. 36157).
(e). The protection of the worker

Since 1919, the International Labour Organisation has drawn up a great
many Conventions and Recommendations which have come to be known as
the International Labour Code. This code is also called an international
corpus jutis of social justice. These international instruments deal with con-
ditions of work and life, such as hours of work, protection of women and
young workers, occupational safety and hygiene, social security and wages.
They also deal with the basic machinery of labour administration, such as
inspection, employment services and minimum wage fixing. A further group
of international instruments lays down the fundamental human rights to
which all workers should be entitled: freedom of association, freedom from
compulsory labour, equal opportunity and treatment in their employment
and occupation. The protection of the worker and the international instru-
ments drawn up by the IL0 for this purpose can be indicated on the basis of
four principal objectives (freedom, equality, economic security and dignity)
which were stated by the Declaration concerning the Aims and Purposes of
the IL0 (Philadelphia, 1944) in the following terms: All human beings,
irrespective of race, creed or sex, have the right to pursue both their mate-
rial well-being and their spiritual development in conditions of freedom and
dignity, of economic security and equal opportunity.
Of particular relevance to workers rights are freedom of association and
collective bargaining. In fact, freedom of association being a political right as
much as an economic and social right, is one of the basic concerns of the ILO.
There are two leading conventions in this area, viz. the Freedom of Associa-
tion and Protection of the Right to Organise Convention (No. 87), adopted in
1948, and the Right to Organise and Collective Bargaining Convention (No.
98) of 1949. The first convention provides that workers and employers, with-
out distinction whatsoever, shall have the right to establish and, subject only
to the rules of the organization concerned, to join organizations of their own
choosing without previous authorization. It also provides for certain rights
and guarantees permitting these organizations, and any federations or confedera-
tions they may establish, to draw up their own constitutions and rules, to
organize their administration and activities, and to formulate their programmes,
without any interference from the public authorities which would restrict this
right or impede its lawful exercise. The 1949 convention contains provisions
to protect workers against anti&ion discrimination, and also to afford workers
and employers organizations adequate protection against acts of interference
by each other or each others agents or members in their establishment,
functioning, or administration.
The concept of freedom of labour finds clear expression in the Abolition of
Forced Labour Convention of 1957 (No. 105). This convention provides for
the immediate and complete abolition of forced or compulsory labour for

political purposes, as a method of mobilizing and using labour for purposes of
economic development, as a means of labour discipline, as a punishment for
having participated in strikes and as a means of racial, social, national or
religious discrimination. The right to freedom of choice of employment is also
recognized in the Employment Policy Convention of 1964 (No. 122), which
stipulates that States should pursue an active policy designed to promote full,
productive and freely chosen employment.
The elimination of inequality of treatment and the promotion of equal
opportunity are also basic elements of social justice. Prominent among the
international labour standards on this subject is the Discrimination (Employ-
ment and Occupation) Convention of 1958 (No. 111). The aim of this conven-
tion is to eliminate any distinction, exclusion or preference made on the basis
of race, colour, sex, religion, political opinion, national extraction or social
origin, or such other distinction, exclusion or preference, which has the effect
of nullifying or impairing equality of opportunity or treatment in employment
or occupation. This includes such labour conditions or preconditions as access
to vocational guidance and placement services, vocational training, access to
employment and to particular occupations, advancement, security of tenure
of employment, remuneration for work of equal value, hours of work, rest
periods, annual holidays with pay, occupational safety and health, social se-
curity and welfare in connection with employment.
Of particular importance are the efforts to eliminate discriminatory mea-
sures based on sex and on nationality. As regards discrimination based on
sex, the Equal Remuneration Convention of 1951 (No. 100) requires the
application of the principle of equal remuneration for men and women workers
for work of equal value. Equality of treatment for non-nationals is the objec-
tive of various IL0 conventions, in particular the Migration for Employment
Convention (Revised) of 1949 (No. 97). Under this convention, immigrants
lawfully within the territory of a country are to be treated no less favourably
than nationals in respect of a number of matters, including conditions of
employment, training, trade union membership, and the enjoyment of the
benefits of collective bargaining and accommodation.
Many international standards were developed in order to safeguard the
economic security of the worker and to promote adequate conditions of work
and life. Of all the relevant instruments two important conventions will be
mentioned. First, the Employment Policy Convention of 1964 (No. 122),
which is of basic significance with respect to the right to work. The exercise
of this right is essential to the full development of mans personality, as well
as to his economic security. The convention requires that Members declare
and pursue, as a major goal, an active policy designed to promote full, pro-
ductive and freely chosen employment. The convention acknowledges the
close interaction of economic policy and employment policy. The other con-
vention relates to the right to social security. This Social Security (Minimum
Standards) Convention of 1952 (No. 102) consists of a number of parts, each

dealing with a particular branch of social security: medical care; sickness,
unemployment, old age, employment injury, family benefit; maternity, inval-
idity and survivors benefit.
(f. The protection of refugees and stateless persons

The status of refugees and of stateless persons, in other words persons who
for good reasons are unwilling or unable to avail themselves of the protection
of the government of their own country, is a matter of particular interna-
tional concern. The Office of the United Nations High Commissioner for
Refugees has, since its establishment in January 1951, been charged with the
international protection of these persons. Specific international instruments
have been elaborated in order to assure for refugees and for stateless persons
the widest possible exercise of human rights and fundamental freedoms. Two
principles are the basis of these international instruments, in particular the
Convention relating to the Status of Refugees of 1951 and the Convention
relating to the Status of Stateless Persons of 1954: first, that there should be
as little discrimination as possible between nations, on the one hand, and
refugees or stateless persons on the other; second, that there should be no
discrimination based on race, religion or country of origin among refugees
and among stateless persons.
According to the Convention relating to the Status of Refugees, the term
refugee shall apply to any person who as a result of events occurring
before 1 January 1951 and owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it. A Protocol relating to the Status of
Refugees, which entered into force in 1967, was drawn up in order to remove
the dateline of 1 January 1951 so that, vis-k-vis the States parties to the
protocol, the scope of the convention is extended to persons who became
refugees as a result of subsequent events. The Convention requires national
treatment, i.e. treatment at least as favourable as that accorded to their
own nationals with regard to certain rights, such as freedom of religion,
access to courts, elementary education and public relief. With regard to such
other rights, as wage-earning, employment and the right to association, ref-
ugees are entitled to most-favoured-nation treatment, i.e. the most favourable
treatment accorded to nationals of a foreign country. In other respects, e.g.
self-employment and education other than elementary education, refugees
receive treatment as favourable as possible and, in any event, not less fa-
vourable than that accorded to aliens in general. Of particular importance for
refugees is the principle of non-refoulement, i.e that refugees may not on any
account whatsoever be expelled or returned to a country where their life or

freedom would be threatened. This provision may, however, not be invoked
in the case of a refugee who has been convicted by a final judgment of a
particularly serious crime or who constitutes a danger to the security of the
country. This principle of non-refoulement is also included in the 1951 Con-
vention. There is one human right which is of essential importance for refu-
gees, viz. the right to asylum. The Universal Declaration of Human Rights
proclaims that everyone has the right to seek and to enjoy in other countries
asylum from persecution and this right to territorial asylum (which should be
distinguished from diplomatic asylum) is further elaborated in the Declara-
tion on Territorial Asylum, adopted by the UN General Assembly on 14
December 1967 (resolution 2312 (XXII)).
Among the regional organizations, the Organization of American States
has dealt with the matter of refugees and aliens by drafting numerous in-
struments concerning them, such as: the Havana Convention on Asylum
(1928), supplemented by the Montevideo Convention on Political Asylum
(1933) and, more recently, by two Caracas conventions of 1954, one on diplo-
matic asylum and the other on territorial asylum.
The UN Convention relating to the Status of Stateless Persons of 1954
applies to (a person who is not considered as a national by any State under
the operation of its law. As regards most matters, the treatment to be
accorded to stateless persons is the same as that accorded to refugees under
the Convention relating to the Status of Refugees. With respect to certain
rights, however, the Stateless Persons Convention places stateless persons
in a position less favourable than that assured for refugees, e.g. with regard
to wage-earning employment and the right of association, stateless persons
enjoy treatment not less favourable than that accorded to aliens generally
and they are not entitled to most-favoured-nation treatment. In view of the
fact that the status of statelessness is, generally speaking, an undesirable
situation for persons having such status and taking into account the provision
of the Universal Declaration on Human Rights that everyone has the right to
a nationality, a Convention on the Reduction of Statelessness was adopted in
1961. This convention contains provisions for attributing a nationality to
persons who would otherwise be stateless and it prohibits, subject to certain
exceptions, the deprivation of nationality if such deprivation would render
persons stateless.
(g). The protection of combatants, war victims and civilian populations

The body of international humanitarian law applicable in armed conflicts is
contained in a large number of international instruments. The most impor-
tant documents are the Fourth Convention concerning the Laws and Cus-
toms of War on Land (The Hague, 1907) and the Annex to this Convention,
and the four Geneva Conventions of 1949. The Law of the Hague governs
the rules to be observed between belligerents. These rules can be summa-
rized in one overriding principle: belligerents do not have unlimited choice in

the means of inflicting damage on the enemy. The Law of Geneva relates to
the status and protection of specific categories of persons in armed conflicts:
the wounded and sick in armed forces in the field; wounded, sick and ship-
wrecked members of armed forces at sea; prisoners of war; and civilians. The
predominant principle of the Law of Geneva is that persons placed hors de
combat and those not directly participating in hostilities shall be respected,
protected and treated humanely.
In 1968 the General Assembly unanimously adopted a resolution, which the
basic humanitarian principles applicable in all armed conflicts were restated
(res. 2444 (XXIII)). It affirmed the following principles for observance by all
governmental and other authorities responsible for action in armed conflicts:
(a) that the right of the parties to a conflict to adopt means of injuring the
enemy is not unlimited; (b) that it is prohibited to launch attacks against
civilian populations as such; (c) that distinction must be made at all times
between persons taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as possible. It
should be noted that these basic humanitarian principles were held applicable
in all armed conflicts, whether of an international or of a non-international
character.
The four Geneva Conventions of 1949 contain a common article 3, setting
out basic rules which shall apply to armed conflicts not of an international
character occurring in the territory of one of the High Contracting Parties.
In such cases each Party to the conflict shall be bound to apply, as a mini-
mum, the rule that persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention, or any other cause, shall in
all circumstances be treated humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria. The article also prohibits specifically: (a) violence to life and person,
in particular murder of all kinds, mutilation, cruel treatment and torture; (b)
taking of hostages; (c) outrages upon personal dignity, in particular humiliat-
ing and degrading treatment; (d) the passing of sentences and the carrying
out of executions without previous judgment pronounced by a regularly con-
stituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples. These norms are so basic that they are
applicable at any time and in any place (see also Part I, Introd., para. 9). This
common article 3 constitutes, in fact, a human rights convention in itself
within the framework of the Geneva Conventions.
With the exception of the common article 3, laying down minimum guaran-
tees applicable under all circumstances, the provisions of the Geneva Con-
ventions are drawn up for all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Par-
ties (common article 2).
Conventions I and II deal with the protection of the wounded, sick and
shipwrecked as well as the medical and religious personnel. Convention III
contains provisions on the treatment of prisoners of war. Article 4 of that
convention defines the persons having a right to be treated as prisoners of
war. These include: the regular armed forces, the militia and volunteer corps
not part of the regular army, including resistance fighters, provided they
fulfil1 the conditions of having a responsible commander, having a fixed dis-
tinctive sign, carrying arms openly and conducting their operations in accor-
dance with the laws and customs of war. Prisoners of war have a right to
humane treatment in all circumstances and to respect for their persons and
honour, and they retain their full civil capacity (articles 13 and 14). The
convention lays down detailed provisions on such matters as the beginning of
captivity, conditions in internment camps, relations with the exterior and
with the authorities, penal and disciplinary sanctions, termination of captiv-
ity and release and repatriation.
An innovation in 1949 was Convention IV relating to the protection of
civilian persons, who find themselves in the hands of a Party to the conflict or
an occupying power of which they are not nationals. They are protected
against abuses of power by the enemy authorities. Part II of the Convention
entitled general protection of populations against certain consequences of
war deals with safety zones (areas of protection where certain elements of
the population especially meriting protection-the sick, children, aged per-
sons, expectant mothers-can find a refuge). This part also contains provis-
ions for the protection of wounded and sick civilians and concerning free
passage through blockades.
Part III, entitled Status and treatment of protected persons, contains
provisions common to the territories of the parties to the conflict and to
occupied territories. These provisions have a basic character, to be respected
in all circumstances. They require respect for the person, in particular his
physical and spiritual integrity, the prohibition of coercion, torture, collec-
tive penalties and reprisals, and the taking of hostages. Part III also contains
a special section relating to the status of aliens in the territory of a Party to
the conflict and another, very elaborate, section on the treatment of the
population in occupied territories. The latter section deals, inter alia, with
such matters as the prohibition of deportations, ensuring food and medical
supplies, law enforcement, in particular respect for the general laws in force
and for judicial guarantees. Another section is devoted to the treatment of
internees which is in many respects very similar to the treatment to be ac-
corded to prisoners of war in conformity with Convention III.
There is in recent years a definite tendency towards providing greater
protection for peoples who struggle against colonial and alien domination and
against racist regimes for the implementation of their right to self-determination
and independence. Two principal issues are at stake: the question of the
international status of the liberation movements. and the treatment to those
engaged in armed conflicts in connection with them. Many resolutions have

been adopted by the General Assembly on this subject. Of particular impor-
tance is resolution 3103 (XXVIII) (1973) containing basic principles of the
legal status of the combatants struggling against colonial and alien domina-
tion and racist regimes (adopted by a divided vote: 83 in favour, 13 against
and 19 abstentions). The two issues, mentioned above, find expression in
paragraph 3 of this resolution: the armed conflicts involving the struggle of
peoples against colonial and alien domination and racist regimes are to be
regarded as international armed conflicts in the sense of the 1949 Geneva
Conventions and the legal status envisaged to apply to the combatants in the
1949 Conventions and other international instruments are to apply to the
persons engaged in armed struggle against colonial and alien domination and
racist regimes. The question of bringing this type of armed conflict within
the purview of rules applicable in international armed conflicts was the main
controversial issue at the first session of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law (Geneva,
1974). The task of this conference-which held four sessions between 1974
and 1977-was to work out, on the basis of two draft protocols to the Geneva
Conventions prepared by the International Committee of the Red Cross,
additional rules in order to ensure better protection of victims of interna-
tional and non-international armed conflicts. These two protocols were adopted
in June 1977.
3. CUSTOMARY LAW AND GENERAL PRINCIPLES OF LAW

According to traditional international law, the relations between a State and
its own nationals were usually considered as being essentially within the
exclusive sphere of interest of that State. With regard to aliens, however, a
series of rules was developed in State practice and international judicial
decisions in order to guarantee certain fundamental rights to these people,
although these rights were not considered as subjective rights of the individ-
ual but rather as rights inherent in the capacity of each State to make claims
against another State, in particular for the respect of certain rules of interna-
tional law with regard to its own nationals. Thus minimum standards for the
treatment of aliens became part of customary law. It would not be incorrect
to say that this international minimum standard of just treatment of aliens
included what was later reaffirmed in the United Nations Charter as funda-
mental human rights inherent in the dignity and worth of the human person,
whatever his nationality or domicile. Mention should also be made here of the
inviolability of the human person, of his life, physical liberty and security, of
his freedom of conscience and belief, and of his right to compensation in case
of manifest denial of justice. This minimum standard for the treatment of
aliens may be considered as a sort of precursor to the International Bill of
Human Rights adopted by the United Nations. It should not be forgotten
that the idea of a minimum standard for the treatment of aliens was advanced
by the developed countries of Western Europe and North America but strongly
contested by other States, in particular those of Latin America which were of
the opinion that a State whose nationals resided within the territory of an-
other State could not expect better treatment for them than is given to the
nationals of the State of residence. This controversy of minimum standard vs.
equality of treatment has now faded away because, as a result of the devel-
opment of international human rights through the United Nations Charter
and other later international instruments, nationals and aliens are entitled to
the same human rights and the same fundamental freedoms.
Inasmuch as most of the international human rights law has developed
since World War II as part of a collective process through international
organizations, international custom, as evidence of a general practice ac-
cepted as law (article 38, para. l(b) of the Statute of the International Court
of Justice) can particularly be identified today as a source of human rights law
in the light of the collective practices of these organizations. Such collective
practices should, however, in order to become custom-generating, reflect
widely held opinions and represent a broad consensus with regard to the
content and the applicability of certain substantive norms. As was convinc-
ingly argued by Judge Tanaka, who in his dissenting opinion in relation to the
1966 judgment of the International Court of Justice on South West Africa
(Namibia) stressed the collective character of the law-making process, the
practice of the UN through the years sufficiently warrants considering that
the norm of non-discrimination or non-separation on the basis of race has
become a rule of customary international law. The question arises whether
not only the general norm of non-discrimination but also a whole range of
more specific human rights norms may also have become part of customary
international law. The UN Secretariat, when requested by the Commission
on Human Rights in 1962 to give an opinion regarding the difference between
a declaration and a recommendation, touched upon this question in an
affirmative way. It stated, inter alia, that . in view of the greater solem-
nity and significance of a declaration, it may be considered to impart, on
behalf of the organ adopting it, a strong expectation that members of the
international community will abide by it. Consequently, insofar as the expec-
tation is gradually justified by State practice, a declaration may by custom
become recognized as laying down rules binding upon States (EICN.4iL.610).
It may be arguable whether the Universal Declaration of Human Rights in
its totality qualifies in this sense. But one can safely say that this declaration
has over the years been invested by the international community, as repre-
sented by the United Nations, with such authority that no responsible mem-
ber of the international community may disregard an appeal to the rights
enshrined in it. In this respect, the legally enforceable character of these
rights seems to be less important than their moral and political relevance and
weight. Customary human rights law would seem to have a wider meaning
than law whose compliance is to be sought before national or international

tribunals. It is foremost the law which is to be invoked before the interna-
tional or national public fora, such as political organs of the United Nations
and national parliaments.
The concept of the general principles of law recognized by civilized na-
tions (article 38, para. l(c) of the Statute of the International Court of
Justice) is often used to denote general principles of municipal law, in partieu-
lar in the field of private law, shared by a fair number of nations. A few
observations may be made in order to indicate developments in the approach
to this concept. It would seem that a restriction of this concept to private law
principles is no longer valid. The International Court of Justice certainly
assumed that the concept had a wider meaning when it stated in the Reserva-
tions to the Genocide Convention Case (I.C.J. Reports, 1951, p. 23) that the
principles underlying the Convention are principles which are recognized by
civilized nations as binding on States, even without any conventional obliga-
tion. Fundamental human rights as described above in connection with the
distinguishing criteria (see Chapter 3) would certainly fall under the general
principles notion. They constitute peremptory norms of general international
law Gus cogens) and are, as was pointed out earlier, part of a dynamic
process. In such a process new peremptory norms may emerge (see article 64
of the Vienna Convention on the Law of Treaties).
It is, in terms of human rights law, difficult to draw a dividing line between
the concepts of customary law and of general principles of law. It would seem
that they substantially overlap, though the former is more reflected and
affirmed by consistent practices of international organization and States,
while the latter denotes fundamental or suprapositive norms which lie at the
basis of the whole human society. In this connection a remark should be made
about the qualifying phrase recognized by civilized nations. The term civi-
lized nations-and its predecessor Christian nations-derives from a pe-
riod when the community of nations was constituted by a select group of
States which pretended to represent human civilization. Since the interna-
tional community, in the form of the UN, has now virtually reached univer-
sality, the notion of exclusiveness which was inherent in the term civilized
nations is out of place and consequently the term should be avoided. General
recognition of human rights and fundamental freedoms cannot be achieved
unless pretentions of exclusiveness and notions of inequality disappear.
4. DECISIONS OF INTERNATIONAL ORGANS

Numerous international organs make decisions in human rights matters. One
can roughly distinguish political organs, quasi-judicial organs and judicial
organs. Political organs are, as a general rule, composed of officially desig-
nated representatives. Their proceedings are usually conducted in public
meetings. Inasmuch as these political organs function in the framework of
inter-governmental organizations, their decisions reflect, to a large extent,

the views and interests of governments. Both on national and international
levels, representative political organs have an important law-creating and
law-developing function, in the sense that they act as (quasi-) legislators.
Generally applicable norms, thus created or developed, ideally have their
roots in the public opinion of the peoples (We the Peoples of the United
Nations. ). International instruments relating to human rights adopted by
political organs, whether in the form of conventions-which need, however,
to be ratified by States parties in order to become operative-or in the form
of declarations, and even recommendations, are or become, by consistent
affirmation and practice, part of international human rights law.
The very same law-creating or law-developing political organs or sub-organs,
or, in matters of international peace and security, the Security Council as the
appropriate organ, may also be called upon to make decisions relating to
specific human rights situations which touch upon actual policies and prac-
tices of governmental authorities. In such concrete cases of application (or
non-application) of human rights norms, the political factor is prevalent. It is
certainly not suggested here that, in view of the prevailing political consider-
ations, the pertinent decisions, whether they concern the apartheid policy or
gross violations of human rights by a military junta, do not represent a very
legitimate human rights concern. It is, however, admitted that such decisions
are very much conditioned by political interests and views regarding the
specific situation and that this does not mean that similar decisions would
logically follow in relation to other cases when human rights are equally
violated in a consistent manner. In other words, where the political organs
make decisions in concrete human rights cases, political expediency will be
much more decisive than such judicial categories as the force of law or legal
precedents. This holds true for most of the organs of the United Nations,
including the Security Council, the General Assembly, the Trusteeship Council,
the Economic and Social Council, the Commission on Human Rights, etc.
Decisions of such organs regarding concrete situations may be considered as
political interventions on humanitarian grounds or, to put it another way,
humanitarian interventions on political grounds.
Quasi-judicial organs usually deal with concrete situations or cases involv-
ing human rights. They are, as a general rule, not called upon to take legally
binding decisions but rather to perform functions of inquiry or investigation
and of conciliation. They may also express opinions or formulate recommen-
dations. A whole range of such quasi-judicial organs has become part of the
present-day international human rights structure, either as organs of a per-
manent character or as ad hoc bodies. Prominent among the permanent
bodies are the European Commission of Human Rights, the Inter-American
Commission on Human Rights, the Committee on the Elimination of Racial
Discrimination, and the Freedom of Association Committee of the Governing
Body of the ILO. Of the ad hoc bodies the Ad Hoc Working Group of Experts
of the UN Commission on Human Rights (whose mandate has now repeat-

edly been extended) and Commissions of Inquiry established under article 26
of the IL0 Constitution may be cited.
These quasi-judicial organs are called upon to apply international human
rights standards, either as part of the implementation machinery of a conven-
tion or as a subsidiary organ of an international organization. Their task is to
draw up a report embodying their findings of the relevant facts as well as
their conclusions and recommendations, which might be directed to one or
more governments concerned, to political organs or to judicial organs for
further action. Some of these quasi-judicial organs, notably the European
Commission of Human Rights and the Freedom of Association Committee of
the ILO, have developed a large body of case law by interpreting and apply-
ing international standards. They often make reference to decisions which
they have taken in previous cases, so that a certain continuity is developed as
regards the criteria employed and the standards applied. In some instances
they contribute to a progressive development of these standards even beyond
the literal scope of the relevant international instruments. An example is the
practice of the IL0 Freedom of Association Committee with regard to the
right to strike. Although this right is not included in the pertinent IL0
Conventions on Freedom of Association, the Committee has repeatedly and
consistently taken the view that allegations relating to this right are within
its competence and that the right to strike by workers and their organiza-
tions is generally recognized as a legitimate means of defending their occupa-
tional interests. Although decisions of quasi-judicial organs are generally not
legally binding, their impact as instructions directed to governments or to
political or judicial organs is considerable. The actual practice of these quasi-
judicial organs and their potential are of great value for the application and
further development of international human rights law.
It would seem that, in the present state of international relations, quasi-
judicial organs have more favourable prospects of becoming effective in-
struments for the promotion and protection of human rights than judicial
organs like the European Court of Human Rights and the International
Court of Justice which, in contentious cases, render legally binding deci-
sions. In terms of actual practice the role of these courts is relatively
limited in comparison with that of political organs and quasi-judicial organs
dealing with human rights. It is on the other hand true that decisions of
judicial organs, though rendered in respect of particular cases in the light
of prevailing circumstances, carry great weight in providing authoritative
interpretation of the law. In this respect decisions of judicial organs consti-
tute reliable reference sources for use and application by the numerous
organs of the national, regional and international communities that are
concerned with the promotion and protection of human rights and funda-
mental freedoms.
5. DOCTRINE
There is no doubt that, given the development of a body of positive interna-
tional human rights law, particularly in general and specific instruments, be
they conventions or declarations, doctrine may only constitute a subsidiary
source of law for determining the content and meaning of human rights. It
may nevertheless be useful not to limit doctrine in this field to the writings of
publicists but to take into account as well the reports or publications from
persons, groups, associations or international organizations having a particu-
lar interest or competence in this field. Thus for example studies undertaken
by special rapporteurs of the UN Commission on Human Rights or of its
Sub-Commission may be of considerable importance in determining the field
of application and the meaning of human rights law in a given area and may
influence the further development of this law. Furthermore, studies and
statements by non-governmental organizations and institutions (such as Am-
nesty International, the International Commission of Jurists, the Interna-
tional Institute of Human Rights) undeniably carry considerable authority.
In fact, one of the specific traits of international human rights law is that this
branch of international law extends well beyond the domain of international
judicial decisions and inter-governmental practice, as well as the interests of
the academic world. International human rights law is of interest to very
many bodies in the national and international community and it would not be
bold to affirm that the writings and acts of all who are concerned have a
direct or indirect influence on the doctrine of human rights.
NOTES
1. The UN General Assembly proclaimed on 20 December 1971 a Declaration on the
Rights of Mentally Retarded Persons (resolution 2856 (XXVI)).
2. See infra, Chapters 8 and 14.
6 Economic, Social and
Cultural Rights
Vladimir Kartashkin
Economic, social and cultural rights now occupy an increasingly important

place in the legal systems and political aspirations of different countries of the
world. They are given much attention in the activities of the United Nations
and other international organizations.
Constitutions and legislative acts adopted in the 18th and 19th centuries
chiefly enumerated civil and political rights. Economic and social rights were
considered at that time as a by-product of the development of civil and
political rights. Only in the beginning of the 20th century did the constitu-
tions of a number of States begin to place an increasingly greater emphasis on
socio-economic rights. We may refer to such instruments as the Constitution
of the United States of Mexico of 1917, the Declaration of Rights of the
Working and Exploited Peoples of 16 January 1918 which was incorporated in
the Constitution of the Russian Soviet Federative Socialist Republic adopted
on 10 July 1918, the Weimar Constitution of Germany of 1919, the Constitu-
tion of the Spanish Republic of 1931, the Constitution of the USSR of 1937,
and the Constitution of Ireland of 1937. Since the Second World War, largely
under the impact of the Universal Declaration of Human Rights, the consti-
tutional recognition of both civil and political rights and of economic, social
and cultural rights has become a very widespread practice. The precise legal
effect of such constitutional guarantees admittedly varies considerably from
judicially enforceable rights to mere statements of objectives of State policy.
In 1969 the UN Commission on Human Rights noted the significant prac-
tical and theoretical contribution of Lenin, prominent humanist, to the devel-
opment and realization of economic, social and cultural rights. . and the
historical influence of his humanistic ideas and activity in this field (res. 16
mw).
In the late 19th and early 20th centuries, the first international agreements
in the field of regulating labour relations were concluded. Thus a beginning
was made in the international regulation of the set of rights under review in
this chapter.
Member States of the League of Nations undertook to endeavour to se-
112 Vladimir Kartashkin
cure fair and humane conditions of labour (Art. 23 of the Covenant of the
League of Nations). The Constitution of the International Labour Organiza-
tion (ILO), a part of the Versailles Peace Treaty, stressed that all industrial
communities should endeavour to apply the following methods and principles
for regulating labour conditions: labour should not be regarded as a commod-
ity or article of commerce; recognition of the right of association of the
employed as well as of employers; payment of a wage sufficiently adequate to
maintain a reasonable standard of life; adoption of an eight-hour working day
or a forty-eight-hour working week; weekly rest of at, least twenty-four
consecutive hours; abolition of child labour and imposition of limitations on
the labour of young persons to permit continuation of their education and to
assure their physical development; men and women should receive equal
remuneration for work of equal value; equitable economic treatment in each
country of all workers lawfully resident therein; provision for a system of
inspection to ensure enforcement of the laws and regulations for the protec-
tion of the employed.
From 1919 onwards, the IL0 adopted a considerable number of conven-
tions on various aspects of labour relations and working conditions.
The adoption of the UN Charter marked the beginning of a new stage in
international law regulation of economic, social and cultural rights. Chapter
IX of the Charter, entitled International Economic and Social Co-operation,
states that one of the primary goals of the United Nations is higher stan-
dards of living, full employment, and conditions of economic and social prog-
ress and development; solutions of international economic, social, health and
related problems; and international cultural and educational co-operation.
(Art. 55 (a) and (b)).
The Universal Declaration of Human Rights adopted in 1948 contains an
extended and specific list of economic, social and cultural rights (Art. 22-27).
These rights are regulated more fully in the International Covenant on Eco-
nomic, Social and Cultural Rights whose provisions, as distinct from the
Declaration, are designed to create binding obligations for States parties to
the Covenant.
Although the General Assembly decided upon the adoption of two distinct
Covenants-one dealing with economic, social and cultural rights, the other
with civil and political rights-it did so essentially because of the different
nature of the implementing measures which would generally be involved, and
not so as to imply any divisibility or hierarchy among the rights concerned.
Both Covenants, in their preambles, expressly recognize that the ideal of
free human beings can be achieved only in conditions where the enjoyment
both of economic, social and cultural rights and of civil and political rights is
ensured.
At the level of regional organizations there has also been an increasing
tendency to supplement universal human rights standards by regional in-
struments and institutions. Among instruments relating to economic, social
Economic, Social and Cultural Rights 113
and cultural rights, mention may be made of: the European Social Charter
(1961) and the European Code of Social Security (1964); the American Decla-
ration of the Rights and Duties of Man and the Inter-American Charter of
Social Guarantees (both of 1948); the American Convention on Human Rights
(1969) which, although dealing primarily with civil and political rights, also
provides for the progressive realization of economic, social, educational, scien-
tific and cultural standards set forth in the Charter of the Organization of
American States; the Arab Labour Standards Convention (1967); and the
Arab Social Security Standards Convention (1971).
International legal regulation of economic, social and cultural rights does
not aim at codifying the legislation of different countries by passing laws
which would establish a uniform legal system ensuring those rights. In view
of the existence of States with different social systems, levels of economic
development, class and national structures and historical traditions, such a
goal would not be practicable. The international standards, however, estab-
lish a minimum level of social protection and welfare whose attainment should
be sought by all States, whatever their systems or circumstances, even if-as
in the case of the Covenant on Economic, Social and Cultural Rights-the full
realization of the rights concerned is envisaged as a result of the progressive
development of national policies, legislation and practical action.
The standards established by the Covenant on Economic, Social and Cul-
tural Rights are frequently couched in general terms which do not delimit the
exact scope of the rights concerned. However, among forms of international
action aimed at its implementation, the Covenant provides for the conclusion
of Conventions and the adoption of Recommendations. More detailed stan-
dards adopted under the auspices both of the United Nations and of the
Specialized Agencies may thus constitute a valuable source for spelling out in
greater detail what is required for the realization of the rights guaranteed by
the Covenant. For instance, the Covenant recognizes the right of everyone to
social security. To determine the substantive content of this right, it is ap-
propriate to refer to the conventions in the field of social security adopted by
the International Labour Organisation. They define the contingencies against
which social security schemes should provide protection, the persons to be
covered in respect of each of those contingencies, and the minimum level at
which benefits should be provided. At the same time, they provide guidelines
for the financing of social security schemes.
In some instances, a corresponding range of more detailed international
standards does not exist. This appears to be the case, for example, as regards
the right to an adequate standard of living, including adequate food, clothing
and housing. In such cases, the supplementary standard-setting envisaged
by the covenant may represent an important future task for the international
community.
The implementation of economic, social and cultural rights depends to a
large extent not on legislation but on the social and economic policies of
States. The inadequate level of economic development and shortage of re-

sources of many countries thus represent a serious obstacle to the realization
of such rights. In these circumstances, as was stressed at the UN Seminar on
the Realization of Economic and Social Rights (Lusaka, Zambia, 19701, de-
veloping countries in particular find it necessary to establish priorities in the
realizat,ion of economic, social and cultural rights. However, even a high level
of economic development and an elaborated legal system are not an adequate
safeguard of human rights which requires, above all, a just socio-economic
structure.2
Some scholars have considered that the Covenant on Economic, Social and
Cultural Rights does not lay down binding legal obligations for States parties
to it. Professor A.H. Robertson, for example, believes that the Covenant
establishes only standards which States should seek to attain.4 Such a conclu-
sion is made with reference to Article 2 of the Covenant which binds States
to take steps. to the maximum of available resources, with a view to
achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adop-
tion of legislative measures. However, some provisions of the Covenant
introduce a more specific timetable for their implementation. This is particu-
larly true of the provisions concerning the introduction of compulsory free
education contained in Article 14. Even here, difficult choices may have to be
made with regard to priorities among measures to improve existing facilities,
so as to enable them to make an effective contribution to both spiritual
development and improvement of living standards, and the quantitative ex-
tension of facilities, so as to make educational opportunities available to all.
On the other hand, since the concept of progressive implementation of eco-
nomic, social and cultural rights is related to the availability of resources,
there would be less justification for deferring the recognition of rights whose
realization is not dependent on the allocation of resources, such as the trade
union rights provided for in Article 8 of the Covenant or the right to respect
for the freedom indispensable for scientific research and creative activity
guaranteed in Article 15. These considerations would also be relevant to the
implementation of the non-discrimination provisions in Articles 2 and 3 of the
Covenant.
As stressed in the UN study on the realization of economic, social and
cultural rights, the Covenant provides the immediate basis for action at
international and regional levels, as well as for the translation of its standard
into national reality. . Its only drawback is that in most of the less developed
countries its provisions can only be implemented progressively, according to
their level of development, availability of resources and size of population.6
The Covenant on Economic, Social and Cultural Rights regulates a large
number of economic, social and cultural rights, which will be reviewed below
in the order in which they are dealt with in that instrument.
1. THE RIGHT TO WORK

This right is one of the fundamental rights in the whole system of human
rights and freedoms. Its realization is necessary not only for the material
well-being of the individual but also for the harmonious development of his
personality. Moreover, equitable labour conditions are also important to the
maintenance of world peace. Thus the IL0 Constitution notes that: condi-
tions of labour exist involving such injustice, hardship and privation to large
numbers of people as to produce unrest so great that the peace and harmony
of the world are imperilled (Section I, Preamble).
According to the Covenant, the right to work includes the right of every-
one to the opportunity to gain his living by work which he freely chooses or
accepts. (Art. 6, para. 1). The right to free choice of work presumes the
prohibition of forced or compulsory labour, as provided for in the Covenant
on Civil and Political Rights (Art. 8, para. 3), as well as the absence of any
discrimination in access of employment, opportunities for promotion or termi-
nation of employment (which would also be contrary to the non-discrimination
provisions in Article 2 of the Covenant on Economic, Social and Cultural
Rights).
The actual implementation of the right to work lies in the provision of work
to all who want it and the protection of everyone from unemployment. The
International Convention on the Elimination of All Forms of Racial Discrimi-
nation specially stresses that the States parties are under an obligation to
ensure equality of everyone with respect to the realization of the right to
work, including protection against unemployment (Art. 5 (i)). The right of
everyone to work and protection against unemployment is also recognized in
Article 23 of the Universal Declaration of Human Rights. The Charter specif-
ically states that one of the objectives of the UN is to promote higher stan-
dards of living and full employment (Art. 55 (a)). The IL0 Employment
Policy Convention of 1964 (No. 122) requires that, with a view to overcom-
ing unemployment and underemployment, each Member shall declare and
pursue, as a major goal, an active policy designed to promote full, productive
and freely chosen employment (Art. 1). This policy, according to the Con-
vention, should be aimed at ensuring employment to everyone who seeks
employment and is ready to accept it. The Discrimination (Employment and
Occupation) Convention of 1958 (No. 111) provides for the declaration and
pursuit of a national policy designed to promote equality of opportunity and
treatment in respect of employment, with a view to eliminating any discrimi-
nation on the basis of race, colour, sex, religion, political opinion, national
extraction or social origin. As regards termination of employment, these
provisions are reinforced by the Termination of Employment Recommenda-
tion of 1963 (No. 119) which-in addition to excluding termination of unem-
ployment on various specified grounds-establishes the general principle
that a workers employment should not be terminated by an employer unless

there is a valid reason connected with the workers capacity or conduct or
based on the operational requirements of the enterprise. The fact that an
employers right to terminate an employment relationship is limited in this
way provides no justification for restricting the workers right to leave a job;
on the contrary, the right of a worker to terminate a contract of employment
of indefinite duration by notice of reasonable length constitutes an essential
aspect of the right to free choice of employment.
The Covenant on Economic, Social and Cultural Rights provides that, with
a view to full realization of the right to work, States parties should take
appropriate steps, including technical and vocational guidance and training
programmes, to achieve steady economic, social and cultural development
and ensure full and productive employment (Art. 6, para. 2). It should,
however, be borne in mind that the growth of economic potential does not
always entail an increase of productive employment. Accompanied by mech-
anization and automation of production, it can sometimes bring about adverse
results. It is therefore important that the employment implications of techno-
logical developments should be kept under constant review and that ade-
quate guidance and training facilities should be made available to enable both
entrants to the labour force and those already working to adapt to changing
conditions and opportunities. In 1975 the IL0 adopted comprehensive stan-
dards concerning vocational guidance and vocational training in the Human
Resources Development Convention (No. 142) and Recommendation (No.
150) of 1975.
2. THE RIGHT OF EVERYONE TO JUST AND FAVOURABLE

CONDITIONS OF WORK
Availability of jobs and safeguards of employment should be supplemented,
in accordance with the Covenant, by the guarantee of the right to just and
favourable conditions of work. According to Article 7 of the Covenant, this
right includes:
(a) remuneration which provides all workers with fair wages and equal
remuneration for work of equal value without distinction of any kind and a
decent living;
(b) safe and healthy working conditions;
(c) equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no consideration other than those of
seniority and competence;
(d) rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays.
The IL0 has adopted a considerable number of conventions and Recommenda-
tions which spell out the above-mentioned aspects of the right to just and
favourable working conditions. Provisions for the operation of minimum wage-
fixing machinery in industry and commerce had been made in instruments

adopted in 1938, while corresponding provisions for agriculture were embod-
ied in instruments of 1951. More recent standards, with particular reference
to developing countries, have been laid down in the Minimum Wage-Fixing
Convention (No. 131) and Recommendation (No. 135), respectively of 1969
and 1970. They provide for creation or maintenance of machinery for the
fixing of binding minimum wages, in full consultation with representative
organizations of employers and workers, and define the element to be taken
into consideration in determining the level of minimum wages.
Provisions for the implementation of the principle of equal remuneration
for men and women workers for work of equal value have been laid down in
the Equal Remuneration Convention of 1951 (No. 100). It should be noted
that the Discrimination (Employment and Occupation) Convention, to which
reference has already been made in connection with the right to work, would
require elimination of discrimination on the basis of race, colour, sex, reli-
gion, political opinion, national extraction or social origin, in respect not only
of remuneration but also of conditions of work in general, and the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination
provides for the prohibition of racial discrimination in respect of all these
matters.
Many IL0 Conventions regulate matters of occupational safety and health.
Standards laid down in these Conventions relate to safety conditions in par-
ticular sectors or occupations-such as the Safety Provisions (Building) Con-
vention of 1937 (No. 62), the Hygiene (Commerce and Offices) Convention of
1964 (No. 120) and the Prevention of Accidents (Seafarers) Convention of
1970 (No. 134)-and to protection against particular hazards-such as the
Radiation Protection Convention of 1960 (No. 155), the Guarding of Machinery
Convention of 1963 (No. 119), the Occupational Cancer Convention of 1974
(No. 139) and the Working Environment (Air Pollution, Noise and Vibration)
Convention of 1977 (No. 148).
Equal opportunity for everyone to be promoted in his employment, subject
to no considerations other than those of seniority and competence, provided
for by the Covenant, has also received legal recognition in international in-
struments which ban discrimination.
A series of IL0 Conventions regulate matters of working hours, rest and paid
leaves. As far back as 1919, IL0 adopted the Hours of Work (Industry)
Convention (No. l), which laid down the standard of the eight-hour day and
forty-eight hour week in industrial enterprises. In 1935 the IL0 adopted the
Forty-Hour Week Convention (No. 47), which provides for application of the
principle of a forty-hour week in such a manner as not to entail a reduction in the
standard of living. The Reduction of Hours of Work Recommendation of 1962
(No. 116), while laying down the maximum limit of 48 hours a week, calls on
Member States of the IL0 to formulate and pursue a policy aimed at a progres-
sive reduction of working hours with a view to attaining a forty-hour week.
The IL0 has also adopted a number of Conventions on weekly rest and
annual paid leaves, such as the Weekly Rest (Industry) Convention of 1921
(No. 14), the Weekly Rest (Commerce and Offices) Convention of 1957 (No.
106), the Holidays with Pay Convention (Revised) of 1970 (No. 132) and the
Hours of Work and Rest Periods (Road Transport) Convention of 1979 (No.
153).
3. TRADE UNION RIGHTS

In accordance with Article 8(l) of the Covenant, the States parties undertake
to ensure:
(a) the right of everyone to form trade unions and join the trade union of his choice for
the promotion and protection of his economic and social interests. ;
(b) the right of trade unions to establish federations or confederations and the right of the
latter to form or join international trade union organizations;
(c) the right of trade unions to function freely. ;
(d) the right to strike provided that it is exercised in conformity with the laws of the
particular country.
Under the terms of the Covenant, the right to form and join trade unions
and the right of trade unions to function freely may be made subject only to
such limitations as are prescribed by law and necessary in a democratic
society in the interests of national security, public order, or for the protection
of rights and freedoms of others. The Covenant does not prevent the imposi-
tion of lawful restrictions by States on the exercise of the rights listed in
Article 8 by members of the armed forces, the police or the administration of
the State (Art. 8, para. 2).
The right of everyone to form trade unions and to join them for the protec-
tion of his interests is also recognized in the Universal Declaration of Human
Rights (Art. 23, para. 3) and in the International Covenant on Civil and
Political Rights (Art. 22, para. 1). Trade union rights are defined in greater
detail in various IL0 Conventions, most notably the Freedom of Association
and Protection of the Right to Organize Convention of 1948 (No. 871, the
Right to Organize and Collective Bargaining Convention of 1949 (No. 98) and
the Workers Representatives Convention of 1971 (No. 135).
Convention No. 87 guarantees to workers and employers, without any
distinction whatsoever, the right to establish and to join organizations of
their choosing without previous authorization (Art. 2); it recognizes the right
of organizations to draw up their constitutions and rules, to elect their repre-
sentatives in full freedom, to organize their programme without any interfer-
ence on the part of public authorities (Art. 3); organizations of workers and
employers are not to be subject to dissolution or suspension by administra-
tive authority (Art. 4). The right to establish and join federations and confeder-
ations and to affiliate with international organizations of workers and em-
ployers is also recognized (Art. 5 and 6). In exercising the rights listed in the
Convention workers, employers, and their organizations should respect the
law of the land, but the law of the land should not impair, or be applied to
impair, the guarantees provided for in the Convention (Art. 8). National
legislation should determine the extent of the application to the armed
forces and the police of the guarantees provided for in the Convention
(Art. 9).
Convention No. 98, which supplements these rules, contains provisions
regarding the protection of workers against acts of anti-union discrimination,
in particular in regard to employment and dismissal (Art. l), and the protec-
tion of organizations of employers and workers from mutual interference in
the activities of the organizations and their administration (Art. 2).
Convention No. 135 makes provision for protecting and affording facilities
to workers representatives in enterprises.
As can be seen from the above indications, whereas the Covenant autho-
rizes ratifying States to impose restrictions on the exercise of trade union
rights by members of the armed forces, the police and the administration of
the State,7 IL0 Convention No. 87 leaves a similar possibility only in respect
of the armed forces and the police. Workers employed in the administration
of the State are entitled to the enjoyment of all the rights provided for in
Convention No. 87, without distinction whatsoever. Furthermore, under this
Convention, the right of international affiliation is guaranteed not only to
federations and confederations of workers or employers organizations (as is
the case under the Covenant) but also to the primary organizations them-
selves. These provisions are further elaborated upon in the Labour Relations
(Public Service) Convention of 1978 (No. 151).
IL0 supervisory bodies and the International Labour Conference have
recognized the close relationship which exists between the exercise of trade
union rights and the effective enjoyment of civil liberties, such as freedom
and security of person and freedom from arbitrary arrest, freedom of opinion
and expression, freedom of assembly, the right to a fair trial, and the right to
protection of the property of trade union organizations. In a resolution on
this question adopted in 1970, the International Labour Conference affirmed
that the absence of the civil liberties enunciated in the Universal Declaration
of Human Rights and the Covenant on Civil and Political Rights removes all
meaning from the concept of trade union rights.
There are no IL0 Conventions which define the scope of the right to strike.
IL0 supervisory bodies have, however, recognized that the right to strike is
one of the essential means through which workers and their organizations
may promote and defend their occupational interests and that a general
denial of the possibility of recourse to this means is inconsistent with the
rights guaranteed by Convention No. 87. These bodies have enunciated a
number of principles regarding the circumstances in which restrictions may
be imposed on the exercise of the right to strike, the categories of workers
Vladimir Kartashkin
who, on account of the special characteristics of their employment, may be

prohibited from striking, and the compensatory guarantees which should be
provided for the settlement of disputes affecting these categories of workers.
These internationally recognized principles may provide a significant source
of reference for determining the scope of the right to be provided for under
the Covenant.
Another international instrument which makes provision for the right to
strike is the European Social Charter. The conclusions regarding the scope
and implementation of that provision reached by the Committee of Indepen-
dent Experts on the European Social Charter may provide another useful
source of reference when considering the precise implications of the Cove-
nant provisions relating to strikes.
4. THE RIGHT OF EVERYONE TO SOCIAL SECURITY,

INCLUDING SOCIAL INSURANCE
The right to social security, including social insurance, is provided for in the
Covenant on Economic, Social and Cultural Rights in general terms. As
previously noted, it is appropriate to turn to IL0 instruments in this field to
determine more precisely the scope of this right.
Comprehensive guidelines on the matter were adopted in 1944 in the In-
come Security Recommendation (No. 67) and in the Medical Care Recom-
mendation (No. 69). The former advocates the provision of protection, by
means of compulsory social insurance, in respect of all contingenicies in which
an insured person is prevented from earning his living, whether by inability
to work or inability to obtain remuneration for his work, or in case of death of
the insured party leaving a dependent family, and the provision of social
assistance to meet needs not covered by social insurance, particularly as
regards dependent children, invalids, aged persons and widows. The Medical
Care Recommendation relates to the provision of comprehensive medical
care covering all members of the community.
These standards have been further developed in a series of subsequent
Conventions and Recommendations. Minimum standards-regarding the per-
sons to be protected and the range and level of benefits-were laid down in
the Social Security (Minimum Standards) Convention of 1952 (No. 102) in
respect of medical care and benefits in case of sickness, unemployment, old
age, employment injury, maintenance of children, maternity, invalidity, and
death of a breadwinner. The obligations of the Convention must be accepted
in respect of at least three of these contingencies, with the possibility of
accepting further parts subsequently. For most of the contingencies, Con-
ventions establishing a higher level of protection have also been adopted,
namely the Maternity Protection Convention of 1952 (No. 103), the Employ-
ment Injury Benefits Convention of 1964 (No. 121), the Invalidity, Old Age
and Survivors Benefits Convention of 1967 (No. 128) and the Medical Care
and Sickness Benefits Convention of 1969 (No. 130); each of these Conven-
tions is supplemented by a Recommendation advocating further enlargement
of the protection to be granted. Unemployment benefits had been the subject
of an earlier instrument, the Unemployment Provision Convention of 1934
(No. 44), but its provisions are no longer adapted to present needs and
further IL0 standards on this question are contemplated. A separate series
of Conventions dealing with social security for seafarers has also been adopted.
The European Code of Social Security and its Protocol, adopted by the
Council of Europe, are based on IL0 Convention No. 102 but require accep-
tance of a higher level of obligations.
The various IL0 and regional standards relating to equality of treatment
of aliens as regards social security are considered in section 10 of the present
chapter.
5. THE RIGHT TO PROTECTION OF AND ASSISTANCE TO THE

FAMILY, MOTHERS AND CHILDREN
In accordance with Article 10 of the Covenant, this right includes protection
of the family and assistance to it, the right of free consent to marriage,
special protection and assistance to mothers during a reasonable period be-
fore and after childbirth, special protection and assistance to children and
young persons and their protection from economic and social exploitation.
The Covenant provides for the prohibition of the employment of children and
young persons in work harmful to their morals or health or dangerous to life
or likely to hamper their normal development. It also provides for the setting
of age limits below which paid employment of children is to be prohibited and
punishable by law.
The right to protection of and assistance to the family, mothers and chil-
dren is regulated in the Covenant in much greater detail than in the Univer-
sal Declaration of Human Rights which says only that maternity and childhood
are entitled to special care and assistance (Art. 25, para. 2).
The Universal Declaration also recognizes (in Art. 16) the right of men and
women of full age to marry and found a family and provides that marriage
should be entered into only with the free and full consent of the intending
spouses. More detailed guarantees on these questions have been laid down in
the Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages adopted by the UN.
The Declaration of the Rights of the Child adopted by the United Nations
General Assembly on 20 November 1959 (Resolution 1386 (XIV)) states that
the child shall enjoy special protection, and shall be given opportunities and
facilities, by law and by other means, to enable him to develop physically,
mentally, morally, spiritually and socially in a healthy and normal manner and
in conditions of freedom and dignity. In the enactment of laws for this purpose,
the best interests of the child shall be the paramount consideration (Principle 2).
A number of IL0 Conventions expand on some aspects of the matters dealt

with in Article 10 of the Covenant. The Maternity Protection Convention
(Revised) of 1952 (No. 103) provides for a 12-week leave for women workers
before and after confinement with at least six weeks for the post-confinement
period, and for the right to cash benefits and medical care during the mater-
nity leave. It is prohibited to dismiss women during pregnancy and confine-
ment leaves. This Convention applies to women employed in industrial
enterprises, commerce and agricultural occupations.
The Social Security (Minimum Standards) Convention of 1952 (No. 102)
makes provision for the payment of family allowances in respect of children.
A series of IL0 standards has been promulgated relating to the occupa-
tional safety and health of women workers concerning the danger which
certain forms of work or substances may involve, both for their own health
and for that of any children they may bear.
A number of IL0 instruments deal with the protection of children and
young persons. A series of Conventions relating to the minimum age for
employment in different sectors of activity was revised by a Minimum Age
Convention (No. 138) in 1973. This Convention calls for the pursuit of a
national policy aimed at the abolition of child labour, through the adoption of
a minimum working age of not less than 15 years (or, in less developed
countries, initially 14 years), with higher minimum age (normally not less
than 18 years) for work involving danger to health, safety or morals. Various
limited exceptions to these standards are permitted.
The Night Work of Young Persons (Industry) Convention (Revised) of
1948 (No. 90) and the Night Work of Young Persons (Non-Industrial Occupa-
tions) Convention of 1946 (No. 79) prohibit the employment of persons under
18 years of age at night in the sectors concerned. Other IL0 Conventions
provide for medical examination and periodic re-examination of persons under
18 years (and, in certain occupations, of persons under 21 years).
6. THE RIGHT TO AN ADEQUATE STANDARD OF LIVING

According to Article 11 of the Covenant, the right to an adequate standard of
living includes adequate food, clothing and housing. The same article also
provides for recognition of the right to the continuous improvement of living
conditions. The Covenant, recognizing the fundamental right of everyone to
be free from hunger, provides that States parties should, individually and
through international co-operation, take appropriate measures to improve
methods of production, conservation and distribution of food so as to achieve
the most efficient development and utilization of natural resources and also to
ensure an equitable distribution of world food supplies in relation to need.
Various international statements have elaborated upon these rights, par-
ticularly as regards the right to adequate food. Thus, the Programme of
Action on the Establishment of a New International Economic Order adopted
by the General Assembly of the United Nations at its Sixth Special Session in
1974 (Resolution 3202 (S-VI)) contains a special section on measures to secure
adequate supplies of food. The World Food Conference, held in November
1974, adopted the Universal Declaration on the Eradication of Hunger and
Malnutrition, as well as a series of resolutions on specific aspects such as
objectives and strategies of food production, priorities for agricultural and
rural development, policies and programmes to improve nutrition, the achieve-
ment of a desirable balance between population and food supply, the estab-
lishment of an International Fund for Agricultural Development, improved
policies for food aid, and international trade stabilization and agricultural
adjustment. At its 29th Session, the General Assembly of the United Nations
endorsed these decisions and, in accordance with a further recommendation
of the World Food Conference, established a World Food Council as an organ
of the United Nations. This organ has adopted a number of recommendations
directed at the eradication of hunger and malnutrition, such as the Manila
Communique (UN doc.A/32/19). Among instruments adopted by the Food
and Agricultural Organization of the United Nations, reference may be made
to the Principles and Guiding Line for the Disposal of Agricultural Surpluses
and the International Undertaking on World Food Security adopted by the
Council of FA0 in 1974. The World Food Programme, jointly established by
the UN and FAO, is designed to provide food as an instrument of develop-
ment and to assist in the realization of the right of everyone to be free from
hunger.
The guarantee of an adequate standard of living and its continuous im-
provement is also the aim of most IL0 Conventions which have already been
referred to in connection with the consideration of other economic and social
rights. The Social Policy (Basic Aims and Standards) Convention of 1962 (No.
117) provides more generally for policies and measures for the improvement
of standards of living and states, iwter alia: that in ascertaining the mini-
mum standards of living, account shall be taken of such essential family needs
of the workers as food and its nutritive value, housing, clothing, medical care
and education.
Other IL0 instruments which may be mentioned in this connection are the
Workers Housing Recommendation of 1961 (No. 115), the Co-operatives
(Developing Countries) Recommendation of 1966 (No. 127) and the Tenants
and Sharecroppers Recommendation of 1968 (No. 132).
The right to continuous improvement of living conditions is a very broad
concept. This right is ensured, first of all, by the absence of unemployment
and inflation, growth of production and real wages, improvement of social
security, etc. The improvement of living conditions depends chiefly on an
appropriate economic policy of the State. However, it should be recalled that
the Covenant stresses the need for international co-operation in this connec-
tion and requires ratifying States to ensure an equitable distribution of world
food supplies in relation to need. The United Nations Declaration on the
Establishment of a New International Economic Order adopted on 1 May

1974 (Resolution 3201 (S-VI)) likewise establishes the principle that the new
international economic order should be founded, among other things, on the
broadest co-operation of all the States Members of the international commu-
nity, based on equity, whereby the prevailing disparities in the world may be
banished and prosperity secured for all. It is thus clear that the striving for
improved standards of living cannot be viewed solely within national limits
but must have regard to the interests of the world community as a whole.
7. THE RIGHT OF EVERYONE TO THE HIGHEST ATTAINABLE

STANDARD OF PHYSICAL AND MENTAL HEALTH
According to Article 12 of the Covenant, this right should be ensured by the
State: through the reduction of the stillbirth rate and infant mortality and the
healthy development of the child; improvement of all aspects of environmen-
tal and industrial hygiene; prevention, treatment and control of epidemic,
endemic, occupational and other diseases; creation of conditions which would
assure to all, medical service and medical attention in the event of sickness.
In connection with this right, reference should be made in the first place to
the work of the World Health Organization. The Constitution of WHO, adopted
in 1946, proclaimed that the enjoyment of health is one of the fundamental
rights of every human being without distinction of race, religion, political
belief, economic or social condition. Although the Constitution of WHO
provides for the possibility to adopt conventions or agreements, this power
has not so far been used. The Organization has, however, adopted various
regulations designed to prevent the international spread of disease and deal-
ing with nomenclature with respect to diseases, causes of death, etc. The
World Health Assembly has also adopted several resolutions on subjects
related to the realization of rights provided in the Covenant, such as nutri-
tion, family health and medical research. l2
The realization of the right to the highest attainable standard of health is
indissolubly linked with the realization of the right to fair and favourable
conditions of work, to social security, an adequate living standard and its
continuous improvement. Numerous studies carried out in a number of coun-
tries have established the relation between the level of income and death
rate. Food, housing conditions environment, adequate medical service-all
these factors have an impact on the health standard of everyone. It is there-
fore appropriate to bear in mind the various IL0 Conventions to which
reference has been made in connection with the right to fair and favourable
conditions of work and the right to social security.
In recent years, international co-operation in the sphere of proper conserva-
tion of the environment has acquired increasing importance. The consequences
of various activities harmful to the environment, such as pollution of the
atmosphere, of international rivers and of the oceans, are of global nature
and affect the interests and health of everyone wherever he may live. Con-
cern with problems of rational use and conservation of natural resources of
the biosphere and improvement of the environment led to the convening of a
special United Nations Conference on the Problem of Man and his Environ-
ment in Stockholm in June 1972 and to the subsequent establishment of the
United Nations Environment Programme. A large variety of international
standards has been adopted in this field in the last decade. *
8. THE RIGHT OF EVERYONE TO EDUCATION

According to Article 13 of the Covenant, the full realization of this right
envisages compulsory and free primary education for all, accessibility to
secondary general education, including technical and vocational secondary
education and higher education with progressive introduction of free educa-
tion and liberty for parents to choose schools for their children. Free compul-
sory primary education should be progressively introduced in all colonial and
dependent territories (Art. 14). It is also stressed in Article 13 of the Cove-
nant that education shall be directed to the full development of the human
personality and the sense of its dignity, and shall strengthen the respect for
human rights and fundamental freedoms. .Education shall enable all per-
sons to participate effectively in a free society, promote understanding, tol-
erance and friendship among all nations and all racial, ethnic or religious
groups, and further the activities of the United Nations for maintenance of
peace.
A series of international instruments has been adopted within the Unesco
framework: the Convention against Discrimination in Education and an ap-
propriate Recommendation of 1960; Recommendation concerning Technical
and Vocational Education (1962) which was revised in 1974; Recommendation
concerning the Status of Teachers (1966); Recommendation concerning Edu-
cation for International Understanding, Co-operation and Peace and Educa-
tion relating to Human Rights and Fundamental Freedoms (1974); and
Recommendation on the Development of Adult Education (1976).
The Convention against Discrimination in Education was adopted by the
General Conference of Unesco in 1960 and entered into force in 1962.14 It is
described in some detail in chapter 13 below.
In the field of technical and vocational education, the General Conference
of Unesco adopted a recommendation in 1962. The International Labour
Conference has also adopted a number of instruments on this subject, partic-
ularly the Vocational Guidance Recommendation (1949), the Vocational Train-
ing (Agriculture) Recommendation (1956), and the Vocational Training Rec-
ommendation (1962). Having these instruments in mind, the General Conference
of Unesco adopted in 1974 the Revised Recommendation concerning Techni-
cal and Vocational Education, which sets forth general principles, goals and
guidelines to be applied according to the needs and resources of each country.
According to this Recommendation, technical and vocational education should

contribute to the achievement of societys goals of greater democratization
and social, cultural and economic development (Part II, para. 5 (a)), inter
alia, by abolishing barriers between levels and areas of education, between
education and employment and between school and society (II, 6 (a)). Among
the principles enunciated in the Recommendation are equality of access for
women and men (II, 7 (f)), special forms of education for disadvantaged and
handicapped persons (II, 7 (g)), participation of representatives of various
segments of society in policy formulation on the national and local levels (III,
121, and equal standards of equality in order to exclude possible discrimina-
tion between the different educational channels (III, 14).
Principles relating to technical and vocational education as part of general
education, as preparation for an occupational field and for continuing educa-
tion are set out in some detail, as are goals relating to methods and materials
and staff.
Another important instrument establishing or reaffirming international
standards relevant to the right to education is the Recommendation concern-
ing Education for International Understanding, Co-operation and Peace and
Education relating to Human Rights and Fundamental Freedoms, which was
adopted by the General Conference of Unesco in 1974. All stages and forms of
education should be guided by the principles set forth in this Recommenda-
tion, which may be considered as an elaboration of the aims of education
specified in Article 26, paragraph 2 of the Universal Declaration. These
principles stress international solidarity and a global perspective for educa-
tion, which should develop a sense of social responsibility and contribute to
strengthening world peace. Member States are encouraged to ensure that
the principles of the Universal Declaration and of the Convention on the
Elimination of All Forms of Racial Discrimination are applied in the daily
conduct of education; that every person is familiarized with the operation of
local, national and international institutions in order to participate in the
solving of problems of the community and the world; that education is linked
with action wherever possible. Certain methods, equipment and materials
and approaches to issues are recommended for different levels and types of
education, both in school and out-of-school, as well as teacher training and
research and development. Under international co-operation, States should
develop international education, receive foreign students, research workers,
teachers and educators, provide for exchange programmes and dissemination
of information, without intervening in matters essentially within the domes-
tic jurisdiction of any other State.
When adopting the Recommendation concerning the development of adult
education, the General Conference of Unesco stated that . the access of
adults to education, in the context of life-long education, is a fundamental
aspect of the right to education and facilitates the exercise of the right to
participate in political, cultural, artistic and scientific life. The instrument
defines a strategy for developing this type of education, indicating its con-
tents, methods, means and structures in a perspective of democratization and
international co-operation.
With these international instruments in mind, a few more general remarks
may be made about the nature of the right to education. As the drafters of
Article 26 of the Universal Declaration were well aware, education can only
be established as a right of everyone in society if the means are available for
generalizing elementary instruction, as well as technical and vocational school-
ing. l5 At that time, great emphasis was placed on the right of parents to
choose the type of education of their children and this has proved to be a
delicate and complex problem for implementation. The various aspects of the
right to instruction and to education and the social and political problems to
which its protection gives rise have been dealt with in a book published in
Budapest. This work contains an interesting discussion on the extent to
which the right to education includes such notions as the right to adult educa-
tion as part of the right to institutional formation, which includes out-of-
school instruction. The author points out, moreover, that the Constitution of
Unesco refers to two aspects of the right to education, namely advancing
equality of educational opportunity and giving a fresh impulse to popular
education (Art. 1, para. 2). As may be seen from the analysis above, the
institutional and legislative developments over the past few decades have
tended to transform these notions from the realm of objectives pursued through
international co-operation to rights set out in international instruments.
9. CULTURAL RIGHTS
Generally speaking, cultural rights refer to a variety of aspects of the rights
to education, to participation in cultural life, to communications and to infor-
mation. They are therefore essential to the relationship between people and
their society and to the question of whether one is able to develop his or her
full human potential within that of society. They are, moreover, all
interdependent and closely connected to other economic and social rights, as
well as to certain civil and political rights. For the purposes of the present
chapter, we shall evoke briefly certain aspects of cultural rights other than
the right to education which has been dealt with above. These concern the
possibility for writers, artists, etc. to create and transmit their works and the
access of the public to their works so as to allow for participation in cultural
life and the cultural identity of peoples.
The first two of these dimensions of cultural rights are considered together
in the International Covenant on Economic, Social and Cultural Rights. Arti-
cle 15 stipulates that everyone has the right to take part in cultural life, to
enjoy the benefits of scientific progress and its applications and to benefit
from the moral and material interests resulting from scientific, literary or
artistic production. l7 Furthermore the States parties undertake to respect
Vladimir Kartashkin
the freedom indispensable for scientific research and creative activity and to
take the steps necessary for the conservation, the development and the diffu-
sion of science and culture. They also recognize the importance of encourag-
ing and developing international contacts in these areas.
A meaningful participation in cultural life and use of the benefits of scien-
tific progress is possible only if there is effective protection of copyright and
preservation of cultural heritage. The moral and material interests in intel-
lectual production are protected, inter alia, by the Universal Copyright Con-
vention of 1952, as revised in Paris in 1971, and by more specialized conven-
tions relating to the protection of performers, producers of phonograms and
broadcasting organizations (1961), protection against unauthorized duplica-
tion of phonograms (1971) and prohibiting and preventing the illicit import,
export and transfer of ownership of cultural property (1970). A series of
conventions relating to the protection of intellectual property and copyright
has been adopted within the framework of the World Intellectual Property
Organization, whose responsibilities relate to rights over literary, artistic
and scientific work and inventions and scientific discoveries. ln Mention should
also be made of the Recommendation on the Status of Scientific Researchers,
adopted on 20 November 1974 by the General Conference of Unesco at its
18th Session.
As regards the protection of cultural property, particular attention has
been given to preserving certain monuments, sights, buildings, manuscripts
and collections of books or archives from destruction or damage in time of
armed conflict, as well as from theft, pillage or vandalism. The Convention of
the Hague for the Protection of Cultural Property in the Event of Armed
Conflict and Protocol for the Execution of the Convention, both of 1954,
contain detailed principles and regulations of the type found in the Geneva
Conventions for the Protection of Victims of War of 1949, including special
protection for internationally registered property (for which there is an In-
ternational Register of Cultural Property under Special Protection). There
are provisions for their control with the assistance of special commissioners-
general, for their safe transport, as well as others aimed at preserving trea-
sures belonging to the cultural heritage of mankind. lg
The international community is now increasingly concerned with attaining
the general objective of ensuring for everyone the right to participate freely
in the cultural life of society laid down in the Charter of the United Nations,
the Universal Declaration of Human Rights and the Covenant on Economic,
Social and Cultural Rights.
In this spirit, in 1973, the UN General Assembly urged governments to
make cultural values, both material and spiritual, an integral part of devel-
opment efforts and to promote involvement of the population in the elabo-
ration and implementation of measures ensuring preservation and future
development of cultural and moral values (res. 3148 (XXVIII)).
At its nineteenth session (Nairobi, 1976), the General Conference of Unesco
adopted a Recommendation on Participation by the People at Large in Cul-

tural Life and their Contribution to It. This Recommendation is a detailed
instrument containing 25 preambular paragraphs and a series of principles
and norms which are to be implemented in accordance with the constitutional
practice of each State. They cover definitions, legislation and administration,
technical, administrative, economic and financial measures and international
co-operation. The Recommendation stipulates, inter alia, that States should
guarantee cultural rights as human rights, guarantee equality of cultures,
provide access to the treasures of national and world culture without discrim-
ination, protect and develop authentic forms of expression, and a number of
other policies relating to the status of persons participating in the creative
processes, mass communication media, education, leisure, etc. Certain mea-
sures are recommended in order to make these policies operationally effec-
tive, such as: decentralizing facilities, activities and decision-making; utilizing
non-institutionalized and non-professional initiatives and advisory structures;
making wide use of information media, diversification of programmes; and
granting subsidies and awarding prizes for cultural activities.
Cultural identity constitutes a preoccupation not only for countries en-
gaged in the process of liberation from foreign domination-which always
includes a cultural componentbut also for countries where the problem is
posited in terms of alienation. In this respect, the notion of participation
should be stressed in the sense of active participation of the community in
artistic events, which is a feature of the cultural life of countries, such as the
African ones, where culture is rooted in the people and the community.
Democratization and decentralization are imperative in these countries as
essential aspects of cultural policy. Countries under colonial domination are
intensely aware of the need to establish and assert a national identity on the
basis of cultural values which often need to be revised and adapted to present
conditions. Cultural identity contributes to liberation, for it provides a justi-
fication for independence movements and resistance to colonialism. Since the
Bandung Conference of 1955, the importance of cultural identity has been
reflected in international declarations and meetings and the promotion of
cultural identity is a recognized objective within the context of global devel-
opment strategy, among individuals, groups, nations and regions. In 1966,
the General Conference of Unesco adopted the Declaration of Principles of
International Co-operation which proclaims in Article I:
1. Each culture has a dignity and value which must be respected and preserved.
2. Every people has the right and the duty to develop its culture.
3. In their rich variety and diversity, and in the reciprocal influences they exert on one
another, all cultures form part of the common heritage belonging to all mankind.
The Intergovernmental Conference on Cultural Policies in Africa, organ-

ized by Unesco with the co-operation of the OAU (Accra, 27 October-6 No-
vember 1975), expressed the principles relating to cultural identity in the

following way:
32. The assertion of cultural identity was considered to be an act of liberation, a weapon
in the tight for effective independence and the best means of achieving the self-fulfilment of
individuals and the harmonious development of societies. It was, moreover, the first pre-
requisite for the advent of a new world order, based on the inalienable right of nations to
dispose of themselves and on recognition of the absolute equality and dignity of all cultures.
33. However, the assertion of cultural identity presupposed resolution and deliberate
action to remove the element of alienation inherent in forms of thought and action which
were foreign to African reality, and the abandonment of undue susceptibility to outside
influences which still too often characterized certain kinds of behaviour. There could be no
genuine independence without cultural decolonization.
These principles are continually being updated and reaffirmed to give greater
weight to this essential component of cultural rights.
10. EQUALITY IN THE ENJOYMENT OF ECONOMIC, SOCIAL

AND CULTURAL RIGHTS
The Universal Declaration of Human Rights proclaims, in Article 2, para-
graph 1, that everyone is entitled to all the rights and freedoms set forth in
this Declaration without distinction of any kind such as race, colour, sex,
language, religion, political or other opinion, national or social origin, prop-
erty, birth or other status. These words are echoed in Article 2, paragraph 2
of the Covenant on Economic, Social and Cultural Rights. The Covenant,
however, goes on to provide, in Article 2, paragraph 3, that developing
countries, with due regard to human rights and their national economy, may
determine to what extent they would guarantee the economic rights recog-
nized in the present Covenant to non-nationals. It should be noted that this
limitation is confined to developing countries and applies only to economic
rights, as distinct from social and cultural rights. It appears from the prepa-
ratory work that its purpose was to prevent non-nationals from monopoliz-
ing the economy of developing countries, and to safeguard the right of
these countries to the enjoyment and disposal of their natural wealth and
resources.21
It should be noted that the right to property, which had been provided for
in Article 17 of the Universal Declaration of Human Rights, has not been
included in the Covenants, and hence nothing in the positive provisions of the
Covenants would prevent the assertion of control over a countrys economy
and resources.
One of the main problems which remains is the possibility for States to
regulate the employment of foreigners and to be able to pursue policies
designed to promote the employment of their own nationals at all levels of
responsibility.
In this connection, it may be noted that Article 2, paragraph 2 of the

Covenant on Economic, Social and Cultural Rights rules out discrimination
on grounds of national origin, but this is not the same as distinctions based on
nationality. A similar approach was adopted in the ILOs Discrimination
(Employment and Occupation) Convention of 1958 (No. ill), it being under-
stood that States would retain the possibility of regulating the employment of
alien labour (which may, of course, be the subject of special bilateral or
multilateral arrangements). It should, however, be noted that the ILOs
recently adopted Migrant Workers (Supplementary Provisions) Convention
of 1975 (No. 143) does within the framework of a policy to promote equality of
opportunity and treatment in employment and occupation of migrant workers
lawfully resident in the national territory, permit restrictions on free choice
of employment during a limited period as well as in certain categories of
employment where required in the interests of the State.
Leaving aside the special considerations mentioned above, there is no rea-
son why the greater part of the rights provided for in the Covenant should
not be accorded to aliens lawfully residing within the national territory, such
as the right to fair remuneration, safe and healthy working conditions, social
security coverage, medical care, etc. Indeed, the failure to accord equality of
treatment to aliens in regard to such rights would be likely to lead to the very
forms of exploitation of migrant labour which the international community
has been seeking to combat. In that connection, it should be noted that most
international labour Conventions, even those not containing any specific pro-
vision for equal treatment of aliens, apply to all persons falling within their
scope, without distinction as to nationality, and that it would therefore not be
open to a State, which ratified any such Convention, to exclude aliens from
its application. This would be the case, for example, as regards Conventions
relating to wages, hours of work, weekly rest, holidays with pay, the em-
ployment of women and young persons, industrial health and safety, the
abolition of forced labour or trade union rights, freedom of association and
social security.
Several IL0 Conventions have as their main object the protection and
equality of treatment in employment of alien workers, such as the Migration
for Employment Convention (Revised) of 1949 (No. 97), the Equality of
Treatment (Social Security) Convention of 1962 (No. 118), and the Migrant
Workers (Supplementary Provisions) Convention of 1975 (No. 143). The last-
mentioned, in addition to providing for measures to combat migration in
abusive conditions, provides for the declaration and pursuit of national policy
to promote and guarantee equality of opportunity and treatment in respect of
employment and occupation, social security, trade union and cultural rights,
and of individual and collective freedoms for migrant workers and their fami-
lies lawfully residing within the national territory.
A series of instruments concerning equal treatment of migrant workers in
the field of social security has also been adopted at the regional level under
Vladimir Kartashkin
the auspices of organizations such as the European Economic Community,

the Council of Europe, the Organization of Central American States, and the
Common African, Malagasy and Mauritian Organization.
An analysis of the economic, social and cultural development of many coun-
tries shows that their achievements are still far from the standards recog-
nized in the Covenant and other international instruments. For a fair and
comprehensive realization of economic, social and cultural rights, it is very
important that each State implements the principles and aims of the Declara-
tion on Social Progress and Development adopted by the United Nations
General Assembly. 23 The Declaration calls for the realization of a number of
national and international programmes which comprise a basis of the policy of
social development and progress. Particularly important for the realization of
economic, social and cultural rights are the following aims and principles
proclaimed in the Declaration: elimination of all forms of discrimination, in-
equality, colonialism, racism, nazism, apartheid and exploitation of the peo-
ples and individuals; respect for national sovereignty and territorial integrity
of States and non-interference in their domestic affairs; the implementation
of agrarian reforms as a result of which systems of land ownership and land
tenure would best serve the goals of social justice and economic development;
the adoption of measures for continuous and comprehensive industrial and
agricultural growth and assurance of the right to work to all; fair and equita-
ble distribution of national wealth and income among all members of society;
elimination of inequality, poverty, hunger and undernourishment, as well as
assurance of adequate housing to all; establishment of comprehensive sys-
tems of social security and insurance; achievement of high standards of medi-
cal care and protection of health and medical service free whenever possible;
eradication of illiteracy with free education at all levels and general access to
culture; elaboration of measures for the protection and improvement of the
environment; development of international co-operation with the aim of in-
ternational exchange of information, knowledge, experience in the field of
social progress and development; and the achievement of general and com-
plete disarmament and channelling of the resources released to the needs of
economic and social progress and well-being of all nations.
NOTES
1. See United Nations Actions iv the Field of Human Rights, 2nd ed., UN doe., Sales
No. E.80.XIV.3.
2. STITAOIHRI40, para. 47.
3. A.P. Movchan, Mezhdunarodlzaya zashchita prav cheleveka [International Protec-
tion of Human Rights], p. 91, Moscow, Gosjurizdat, 1958. A.H. Robertson, Human Rights
in the World, p. 35, Manchester, University Press, 1972.
4. Ibid., p. 35.
5. See Report of the Joint ILOiUnesco Committee of Experts on the Application of the
Recommendation concerning the Status of Teachers, Second Session, Paris, April-May
1970, paras. 304 and 365.
6. The Realization of Economic, Social and Cultural Rights: Problems, Policies, Prog-
ress, by M. Ganji (UN Sales No. E.75.XIV.2)
7. The European Convention for the Protection of Human Rights and Fundamental
Freedoms in this respect follows the wording of the Covenant.
8. The European Special Charter and the American Convention on Human Rights also
permit restrictions on the right to organize only of members of the armed forces and the
police.
9. See Freedom of Association-Digest of Decisions of the Freedom of Association
Committee of the Governing Body of the ILO, Geneva, 1972, paras. 305-328, and Trade
Union Rights and their Relation to Civil Liberties, Report VII, International Labour
Conference, 54th Session (1970).
10. See Freedom qf Association and Collective Bargainiry, General Survey by the Com-
mittee of Experts on the Application of Conventions and Recommendations, Report III
(Part 43), International Labour Conference, 58th Session(1973),and Freedom ofdssociation-
Digest of Decisions of the Freedom qf Association Committee of the Governing Body of the
ILO, Geneva, 1972, paras. 240-292.
11. The question might merit examination, for example, whether-following the practice
adopted in regard to parallel provisions in the European Social Charter-national laws
regulating the exercise of the right to strike should be viewed in the light of the principle,
laid down in Article 4 of the Covenant, that limitations on rights recognized by the Cove-
nant must be compatible with the nature of these rights and be imposed solely for the
purpose of promoting the general welfare in a democratic society.
12. See also Health Aspects of Human Rights, with Special Reference to Developments
in Biology and Medicine, Geneva, WHO, 1976.
13. A register of these is contained in UN dot A/35/359(1980).
14. On the functioning of this Convention, see Pierre Mertens, Lapplication de la conven-
tion et de la recommendation de 1Unescoconcernant la lutte centre la discrimination dans le
domaine de lenseignement: un bilan provisoire, RDHIHRJ, vol. I, no. 1, 1968, pp. 91-108.
15. See the analysis of the discussion on this Article in A. Verdoodt, Naissance et signifi-
cation de la Declaration universelle des droits de lhomme, pp. 241-252, Louvain-Paris,
Editions Nauwelaerts, 1964.
16. Imre Szabo, Cultural Rights, pp. 11-42, Budapest, Akademiai Kiado, 1974.
17. See also Article 27 of the Universal Declaration of Human Rights.
18. The basic international instruments relating to these matters are the Paris Conven-
tion of 1883 for the Protection of Industrial Property, revised in 1967, the Berne Convention
of 1886 for the Protection of Literary and Artistic Work and the Universal Copyright
Convention, signed in Geneva in 1952.
19. See generally UN dot. A1351349(1980).
20. See Intergovernmental Conference on Cultural Policies in Africa, Accra, 27 October-6
November 1975, Final Report, Part II (Report of Commission I), para. 8, Unesco, 1975.
21. See International Provisions Protecting the Rights of Non-Citizens, UN, New York,
1980 (Sales No. E.80.XIV.2).
22. In 1980a working group of the General Assembly began work on the elaboration of an
international convention on the protection of the rights of all migrant workers and their
families. See GA res. 341172(1979).
23. GA res. 2542 (XXIV) (1969).
7 Civil and Political Rights
Frank C. Newman and Karel Vasak
1. PROBLEMS IN THE APPLICATION AND INTERPRETATION

OF CIVIL AND POLITICAL RIGHTS by Frank C. Newman
In this section, we shall show on the one hand, that innumerable international
instruments relate to human rights and, on the other, that these instruments
are implemented and enforced to varying degrees. The question thus arises
as to exactly what these instruments prescribe in the field of civil and politi-
cal rights.
This basic question leads to subsidiary questions:
Which human rights are civil and political?

What international documents contain civil and political rights?
Where do we find the official interpretation of these documents?
What about moral rights (compared with legal)?
Are precedents created when human rights laws are violated?
Before replying to these five questions, it may be useful to delimit the

subject matter of this section through examples. The right to vote-an
important political right-is a good example to start with. The International
Bill of Human Rights has the following provision relating to the right to vote
(Article 25 of the International Covenant on Civil and Political Rights):
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions: a) to take part in the conduct
of public affairs, directly or through freely chosen representatives; b) to vote and to be
elected at genuine periodic elections which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression of the will of the electors. .
We shall not deal here with the distinctions mentioned in Article 2 namely
discrimination based on race, sex, religion, etc., which are dealt with else-
where in this book. Nor shall we examine general limitations which may
136 Frank C. Newman and Karel Vasak
be made on the right to vote. These are, for example, the restrictions applied
in ease of public emergency and the various derogation clauses dealt with
later.
What then? The terms of Article 25 of the Covenant on Civil and Political
Rights just quoted are very ambiguous and raise many questions such as:
When are the restrictions on the right to vote unreasonable?

When are representatives freely chosen?
What are genuine periodic elections?
When is suffrage universal and equal?
What is meant by secret ballot?
Who should be considered a citizen?
One of the main purposes of this section is to make it possible to answer

such questions.
The term genocide is a different type of example. The human right at
stake is the right not to be threatened by or become a victim of genocide.
Article 6 of the Covenant on Civil and Political Rights refers to the 1948
Convention on The Prevention and Punishment of the Crimes of Genocide
and stipulates that the death penalty shall not be contrary to the provisions
of the Convention. According to the definition given therein, genocide means
any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, such as: a) killing mem-
bers of the group; b) causing serious bodily or mental harm to members of the
group; c) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; d) imposing measures
intended to prevent births within the group; e) forcibly transferring children
of the group to another group.
This definition seems reasonably clear. It applies to any national, ethnical,
racial or religious group but not to purely political groups. The glaring
disparity between legal definitions and rhetoric about this term comes out in
the following:
(An alleged oppressor) was clever enough not to concentrate on indivi-

duals who opposed the regime but to crush the soul and pride of the nation
as a whole. This is spiritual genocide. (The New York Times, 23 Septem-
ber 1972, p. 29).
Urgently request UN mission to visit territory and examine unjust and

iniquitous land laws designed to deprive illiterate indigenes of their land.
Stop. Such deprivation amounts to genocide as indigenes have no other
resource. (A/AC. log/PET. 1122, 29 December 1969.
Civil and Political Rights 137
(Paragraph 30. (in UN Doc.EICNUSub.2iL.582) appeared to be inspired by

tendentious propaganda based on racial and religious hatred. The Special
Rapporteur had cotlficsed the spec$ic characteristics sf the crime ofgeno-
tide with the normal comequewes ofwars. However, in a study which was
intended to be scientific, it was inadmissible that a distorted picture of
certain past events should be included Indeed, it would merely complicate
the Commissions work in its search for an exact definition of the crime of
genocide. (EICN.4ISR.1286, 8 March 1974, p. 3-emphasis added).
The United Nations heard charges today that North American imperialists
were embarked on a plan of genocide in Puerto Rico that has led to
sterilization of 200,000 women, or 35 percent of those of childbearing age.
(The New York Times, 31 October 1974, p. 10).
There have been allegations that school busing, birth control clinics, lynch-
ing, police actions with respect to the Black Panthers, and the incidents at
My Lai constitute genocide. The Committee wants to make clear that. none
of these and similar acts is genocide unless the intent to destroy the group
as a group is proven. Harassment of minority groups and racial and reli-
gious intolerance generally, no matter how much to be deplored, are not
outlawed per se by the Genocide Conventions. (U.S. Sen. Ex. Rep. 93-5, 6
March 1973, p. 6).
The indications provided in this section regarding interpretation may be

useful to all who, at the political or practical level, must reply to accusations
of genocide so often made by the press and other media.
(a). Which human rights are civil arzd political?

Here we differentiate civil and political from economic, social and cul-
tural. For exact definitions, we use the Universal Declaration of Human
Rights and the two UN Covenants. Even in that unique compilation there
are a few overlappings and inconsistencies.
This chapter excludes civil and political rights that are discussed elsewhere
in this book. An example is freedom from discrimination on grounds of race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status (Art. 2 of each Covenant). See also
these words in Article 27 of the Civil and Political Covenant:
In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in commu-
nity with the other members of their group, to enjoy their own culture, to
profess and practice their own religion, or to use their own language.
Some jurists try to list or classify civil and political rights. In Article 5 of
the United Nations Convention on the Elimination of All Forms of Racial
Discrimination, for instance, this catalogue appears:
a) The right to equal treatment before the tribunals and all other organs
administering justice;
b) The right to security of person and protection by the State against violence
or bodily harm, whether inflicted by Government officials or by any individ-
ual, group or institution;
c) Political rights, in particular the rights to participate in elections, to vote
and to stand for election-on the basis of universal and equal suffrage, to
take part in the Government as well as in the conduct of public affairs at
any level and to have equal access to public service;
d) Other civil rights, in particular:
(i) the right to freedom of movement and residence within the border of
the State;
(ii) the right to leave any country, including ones own, and to return to
ones country;
(iii) the right to nationality;
(iv) the right to marriage and choice of spouse;
(v) the right to own property alone as well as in association with others;
(vi) the right to inherit;
(vii) the right to freedom of thought, conscience and religion;
(viii) the right to freedom of opinion and expression;
(ix) the right to freedom of peaceful assembly and association.
A less formal list, describing for schoolchildren the relevant articles of the
American Declaration on the Rights and Duties of Man, reads as follows:
Every human being has the right to be treated as a brother.

The Articles of this Declaration are applicable to all peoples, no matter who
they are, what they do, what they believe, or where they live.
Every human being has the right to live peacefully.
No one is compelled to work as a slave.
No one should be treated inhumanly.
Every person, everywhere, under all circumstances, is deserving of his rights.
All persons have the right to equality before the law.
No one may be punished for a crime or offence he did not commit.
Every person has the right to defend himself before a previously established
court.
Every person has the right to be considered innocent until he is proved
guilty.
Every person has the right to establish a residence and to freedom of movement.
Any person who is persecuted in one country has the right to change his
residence to another.
Every person has the right to the inviolability of his home.
Every person has the right to own property and to preserve it.
Every person has the right to the freedom of religion and worship.
Every person has the right to hold his own ideas and to express them.
Every person has the right to vote for the candidates of his choice, by secret
ballot, and in honest elections.
Every person has the right to be a member of any association permitted by
law..
Every child has the right to determine his paternity.
Every person has the right to assemble peaceably with others.
Every person should endeavor, whenever possible, to aid others to ensure
these rights.
Here we will attempt no list, classification or catalogue. Instead we will

stress words, especially the words in the Universal Declaration of Human
Rights (its first 21 articles, also Articles 28 to 30) and in the Civil and Political
Covenant (Parts II and III). They are the instruments which are essential for
human rights. This chapter should be read along with a copy of those two
documents which must be studied with care. Almost every word that sur-
vived the drafting disputes during the UN deliberations will merit scholarly
analysis.
(b). What international documents contairz cid and political rights?

Obviously, the provisions of the Universal Declaration and the Covenant on
Civil and Political Rights are only the starting point for our search. Countless
other international instruments also contain relevant provisions.
It should be kept in mind that a government may be bound not only by
human rights treaties to which it is a signatory or a party but also by some
treaties it has not signed, ratified or acceded to, and some instruments that
are not treaties. This results in part from the substance of international law
which includes, as illustrated by the famous words of Article 38, paragraph 1,
of the Statute of the International Court of Justice, custom and general
principles. What is still more important is that numerous treaties and other
documents authoritatively interpret the human rights clauses of the UN
Charter by which practically every State is bound. This is clearly the case
with the International Bill of Human Rights; and a parallel interpretative
impact of the UN Convention on Racial Discrimination, the Declaration on
the Granting of Independence to Colonial Countries and Peoples, the 1949
Geneva Conventions and many other documents is now well-established.
To illustrate: exactly what are the obligations of governments regarding
torture? All UN Member States pledged themselves, in Article 56 of the
Charter, to take joint and separate action in co-operation with the Organiza-
tion for the achievement of the purposes set forth in Article 55; and those
purposes set forth in Article 55 include promotion of respect for, and ob-
servance of, human rights. When a government condones torture, is its
action consistent with the promotion of respect for, axd observance of,
human rights?
Yet may a governments officials contend that its obligation under the
Charter is really too ephemeral, too vague? Fortunately, many other docu-
ments, in detail, spell out the worlds proscriptions of torture. For example:
Universal Declaration qfHumarl Rights

No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (Art. 5).
Covenant on Civil axd Political Rights
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation (Art. 7).
All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person (Art. 10.1).
European Convention on Human Rights
No one shall be subjected to torture or to inhuman or degrading treatment
or punishment (Art. 3).
American Declaration qf the Rights and Duties qf MarL
Every individual who has been deprived of his liberty. has the right to
humane treatment during the time he is in custody (Art. XXV).
Every person accused of an offense has the right. not to receive cruel,
infamous or unusual punishment (Art. XXVI).
American Convention on Human Rights
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be
treated with respect for the inherent dignity of the human person (Art.
5.2).
1949 Geneva Conventions on the Wounded, Prisoners ofWar, Civilians
The following acts are. prohibited.
a) violence to. person, in particular. mutilation, cruel treatment and
torture;.
b) outrages upon personal dignity; in particular, humiliating and degrading
treatment, (Art. 3.1).
UN Standard Miniwlunz Rules for the Treatment qf Prisoners
Corporal punishment, punishment by placing in a dark cell, and all cruel,
inhuman or degrading punishment shall be completely prohibited as pun-
ishment for disciplinary offenses (Art. 31).
What should a governments legal advisors and other lawyers advise re-
garding all these words? Every nation in the world, we submit, is bound, as
to torture, by all those clauses in the UN Charter, the Universal Declaration,
the Covenant on Civil and Political Rights, the Geneva Conventions of 1949,
and the Standard Minimum Rules. Every individual in the world is entitled
to the protections afforded by the best words of all those documents. The
European Convention because of its stingy wording does not add to the
substantive law; yet its procedural protections could be crucial. The two
American texts, differing as they do slightly from the UN texts, might be
supplementary in borderline cases; they too, of course, could be the basis for
procedural protection.
Torture exemplifies many problems of human rights in which, to find the
relevant provisions of substantive law, we must examine whole sets of docu-
ments. The fact that one document seems clearly to apply to a situation is
never sufficient reason for assuming that greater protection may not be ac-
corded by other documents.
(c). Where do we find the ojficial interpretation qf these documents?

In many nations, the most official and most influential interpretations are
found in the decisions of courts and tribunals. Only sporadically, however, do
domestic courts and tribunals deal with international human rights law. On
their part, international decision-making organs are even more rarely con-
cerned. Therefore, we are not normally instructed by the lessons of adjudi-
cated cases.
International precedents relating to civil and political rights are mostly due
to the efforts of diplomats and other non-judges, and of bodies whose powers
are analogous to those of an ombudsman in that their functions are investiga-
tive, reportive, recommendatory and censurial rather than adjudicative.
The practice of legislative bodies and of other quasi-legislative bodies is
relevant. There are, of course, some doubts as to when that practice truly
does interpret or apply international law. Yet it is legislative practice, for
example, that seems to have abolished any juridical distinction between human
rights and fundamental freedoms. The UN Charter, which mentions human
rights and fundamental freedoms, could have been interpreted to create
distinctions.
How should we approach the international case law and practice that affect
civil and political rights? Traditionally, jurists have been most comfortable at
that kind of task when they take the words of a treaty or other document and
then line up the precedents that seem to interpret, apply or in other ways
concretize those words. They then decide which precedents seem most cor-
rect, most authoritative, most persuasive for whatever reasons.
That process can be and is employed in international human rights law. By
examining, for instance, the Secretariats Repertory of Practice of UN Or-
gans and also Charter qf the United Nations: Commentary and Documents
(Goodrich, Hambro and Simon, 3rd edition, 1969), we can find citations that
concern each human rights clause of the UN Charter.
By examining the works of Fawcett, Partsch and others and the Digest of
Case-Law Relating to the European Convention on Human Rights 19551967,
we are able to identify cases and practices regarding each clause of the
European Convention on Human Rights. ! These volumes are notable among
hundreds that might usefully guide us.
(d). What about moral rights (compared with legal rights)?

Our attention is focused here on legal rights. The question Have human
rights been violated? here means, Has human rights law been violated?.
Further, we here postulate a violator, whether governmental or non-
governmental.
To illustrate: starvation often violates individuals human rights. In this
case there are two inquiries: Where legal norms violated? and Was there a
violator?. Governments and non-governmental persons may have moral, not
always legal, duties to help prevent starvation, but moral duties are not here
our concern.
(e). Are precedents created when human rights laws are violated?
We here presume that legal rights exist whether or not there are remedies.
That does not mean we ignore or condone violations which persist unremedied.
That they do persist, however, hardly transforms them into precedents.
International human rights law still is new law. Traditional doctrines such as
desuetude seem inapt. A distinguished scholar and statesman has reminded
us that a model for behaviour can remain a legal norm (even) if it is not
universally respected and that it ceases to be a norm, and becomes a
dream, (only) when it no longer corresponds to the generality of practice and
society abandons any attempt to vindicate or protect it. By no means has
our society yet abandoned its vigorous attempts to vindicate and protect
human rights law.
2. ANALYTICAL EXAMINATION OF CIVIL AND POLITICAL

RIGHTS by Karel Vasak
In order to carry out an analytical examination of civil and political rights, it
is fitting to refer to those legal instruments whose very purpose is either to
proclaim those rights or to guarantee them. These are the Universal Declara-
tion of Human Rights (Articles 3-21) and the International Covenant on Civil
and Political Rights, then the regional Conventions, namely the European
Convention on Human Rights and its Additional Protocols Nos. 1 and 4, the
American Declaration of the Rights and Duties of Man (Articles 1 to 10, 17 to
28), and the American Convention on Human Rights, together with a number
of specific instruments concerning particular civil or political rights such as,
for instance, the Convention on the Prevention and Punishment of the Crime
of Genocide.
It is primarily in connection with treaties relating to civil and political
rights that the question arises as to whether their provisions are self-
executing or, in other words, whether they are directly and immediately
applicable under the municipal law of States that have ratified them or, in
order for them to be applied, they necessitate national measures of imple-
Civil and Political Rights
mentation. It is to be noted that this question arises only for those States in
which a treaty, once ratified becomes an integral part of its municipal law; for
other States, this same treaty will remain a simple inter-State commitment
that will have to be executed by the State under its municipal law by means
of legislative and other measures of its choice.
In the doctrine, the self-executing character of both the Covenant on Civil
and Political Rights and the European Convention on Human Rights has
been much debated, but the problem does not seem to have been discussed in
regard to the other treaties mentioned above. In the case of the Covenant, it
has been contended that paragraph 2 of Article 2, in particular, allows one to
conclude that the Covenant does not oblige States to put it immediately into
application since it stipulates: Where not already provided for by existing
legislative or other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights
recognized in the present Covenant. Conversely, it has been stressed that
the obligations undertaken by the parties to the International Covenant on
Civil and Political Rights are, by and large, meant to be implemented imme-
diately upon ratification, and the rights set forth in the International Cove-
nant on Economic, Social and Cultural Rights are to be implemented
progressively. lH
Without taking sides in this controversy the importance of which is not
merely theoretical, I must point out that in those countries which consider
the treaties on human rights to be self-executing, these treaties can conse-
quently be directly invoked before the national authorities and, first of all,
before the courts. Thus, there will be a national case-law and practice inter-
preting the provisions of these treaties alongside an international case-law
and practice which will be the work of organs responsible for international
implementation, with the first, however, not having the same authority as
the second. Although this case-law and practice, both national and interna-
tional, is as yet in an embryonic state for the universal treaties-the Cove-
nant only entered into force in 1976-their volume is already considerable in
the case of the regional treaties and, primarily, the European Convention on
Human Rights. l3 Insofar as the treaties protecting civil and political rights
contain identical or largely similar provisions-in this respect there are a far
larger number of equivalent provisions than of divergent ones-national and
international case-law and practice in regard to a treaty may serve, if not as
legal precedents, at least as elements of reference or inspiration for the
interpretation of the provisions of another treaty. In the following pages, I
shall, for lack of space, make do with giving merely a few very general
guidelines; a comparative and truly exhaustive analytical study still unfortu-
nately remaining to be carried out.
The civil and political rights set forth in the different instruments on human
rights are aimed at protecting mans personal integrity (a), his freedom (b),
his right to the proper administration of justice (c), his family and his privacy
(d), his intellectual activity (e), his political and trade union activity (D, and
his economic activity (g); but the rights thus guaranteed are also subject to
several restrictions (h), and to the principles of equality and non-discrimination,
dealt with above, which govern their application and their interpretation.
(a). Protection qf the integrity of the human persofa
(i). THE RIGHT TO LIFE
The right to life is the first right of man. All the international instruments
proclaim that right in largely similar terms.17 The death penalty, however, is
not prohibited, although its abolition seems to be desired by the Covenant, in
particular in paragraph 6 of Article 6. According to the Covenant, no one
shall be arbitrarily deprived of his life, or only in cases specifically enumer-
ated by the regional Conventions. Protection must be provided against the
death sentence in Member States of the international community with re-
gard, in particular, to persons under 18 years of age and pregnant women;
furthermore, all ways and means of avoiding capital punishment must be
preserved (pardon, commutation of sentence, amnesty).
While it falls to the national legislature to establish the violation of the
right to life as a crime and to take all the necessary measures, such violations,
when directed, in whole or in part, against the right to life of a national,
ethnic, racial or religious group, are referred to as genocide-a crime which
the international community has made the subject of a specific Convention,
namely the Convention on the Prevention and Punishment of the Crime of
Genocide of 9 December 1948. The crime of genocide, like other crimes
against humanity, together with war crimes, is not subject to statutory limi-
tation under the terms of the Convention on the Non-Applicability of Statu-
tory Limitations to War Crimes and Crimes against Humanity of 26 November
1968, the equivalent of which exists in Europe in the form of the Council of
Europe Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity of 25 January 1974.
In recent years the question, which has most frequently been brought
before both national tribunals and international organs for the implementa-
tion of human rights,O is that of the compatibility of abortion and certain
other means of birth control with the right to life.
(ii). RECOGNITION OFJURIDICAL PERSONALITY ANDTHE RIGHT TO NATIONALITY
Everyone has the right to recognition everywhere as a person before the

law*l civil death, whatever its form, consequently is not permitted by the
intetrnational community.
It is here that the question arises as to whether and to what extent the
human rights recognized by the international instruments benefit both natu-
ral persons and legal persons. Tne question is not always settled in the
clearest terms, although the general tendency is to recognize that legal per-
sons enjoy those human rights that are compatible with their nature. But
hesitations are still allowed, particularly in the case of the Covenant.
Whereas the Universal Declaration proclaims in its Article 15 that every-
one has the right to a nationality and that no one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality, the
Covenant confines itself to stipulating in its Article 24, paragraph 3, that
every child has the right to acquire a nationality. Specific conventions
designed to settle the problems of double nationality, to guard against state-
lessness and to facilitate the exercise of human rights by refugees and state-
less persons have been drawn up by the UN. These are: the Convention on
the Nationality of Married Women of 29 January 1957, the Convention on the
Reduction of Statelessness of 30 August 1961, the Convention relating to the
Status of Stateless Persons of 28 September 1954, the Convention relating to
the Status of Refugees of 28 July 1951 and the Protocol relating to the Status
of Refugees of 31 January 1967.24
(iii). THEPROHI~ITION~FTORTURF,,CRUEL,INHUMAN~I~I~F,GRAI~INC:TIIF.ATM~NT
ORPUNISHMENTAND MEDICALOR SCIENTIFIC EXPERIMENTATION
The prohibition of torture, cruel, inhuman or degrading treatment or punish-

ment and medical or scientific experimentation without the free consent of
the person concerned is most strikingly revealed by the international com-
munitys concern to defend and preserve the physical and moral integrity of
the human being. Not only is this prohibition included in all the instruments
on human rights but, in addition, there can never be any derogation from it,
even in the event of public emergency.
The General Assembly reacted against the spread of torture by adopting at
its 30th session in 1975, by Resolution 3452 (XXX), the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. In that Declaration tor-
ture is defined, in Article 1, as follows:
1. For the purpose of this Declaration, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted by or at the instigation
of a public official on a person for such purposes as obfninirrg from him or a third
person information or confession, punishing him for an act he has committed or is
suspected of having committed, or intimidating him or other persons. It does not
include pain or suffering arising only from, inherent in or incidental to, lawful sanc-
tions to the extent consistent with the Standard Minimum Rules for the Treatment of
Prisoners.
2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading
treatment or punishment.
Since the adoption of the Declaration many States have made unilateral
declarations in conformity with the principles contained therein (See UN doe.
A1351370 (1980)). The drafting of a Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment was begun by the
Commission on Human Rights in 1978 but had not been completed as at
February 1981.
Moreover, the question of torture has been raised on numerous occasions
before several organs of the United Nations and in particular the Commission
on Human Rights, in connection with different territories in southern Africa
(Namibia, Rhodesia, South Africa), territories occupied by Israel and, more
recently, Chile. The matter has also been brought before the regional institu-
tions on human rights: the Inter-American Commission on Human Rights
deals with allegations of torture in nearly all its reports;7 the European
Commission on Human Rights has had to concern itself with torture in the
inter-State cases-Greece v. United Kingdom; Denmark, Norway, S,weden
and the Netherlands II. Greece (the Greek case); Ireland v. United King-
dom and Cyprus v. Turkey, as well as in a great number of individual applica-
tions brought by prisoners who complained not so much of being tortured as
of being ill-treated (Kornvnavz ~1.Federal Republic of Germany; Simon-Herald
u. Austria, etc.).
The prohibition of medical or scientific experimentation, practised on human
beings in conditions contrary to human rights, was one of the after-effects
against Nazism which had practised it on a large scale. While the so-called
Nuremberg rule? define the limits and conditions for authorizing experimen-
tation, they have not resolved all the problems arising in this area, which has
again become topical in the last few years. Patients Bills of Rights have
been adopted in some States while, at the international level, the UN Gen-
eral Assembly again considered in 1980 a Draft Code of Medical Ethics,
drafted by the World Health Organization with a view to protecting persons
subjected to any form of detention or imprisonment, against torture and
other cruel, inhuman or degrading treatment or punishmentl
(iv). PR~HIDITIONOFSI,AVERY,SERVITUUEANI~~ORCF,I~ANDCOMP~I,SORYI,ABOUR
Slavery and servitude, too, are absolutely prohibited, everywhere and at all
times, by all the human rights instruments. Specific conventions further
reinforce this prohibition by defining, in particular, slavery: these are the
Slavery Convention signed at Geneva on 25 September 1926 and the Protocol
of 7 December 1953, which amends it, together with the Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery of 4 July 1957. In the same vein of thought,
mention should be made of the Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of Others of 21 March
1950 which incorporates several instruments, adopted before the Second
World War, aimed at the same objective.
While, under the terms of the human rights instruments, no one can be
obliged to perform forced or compulsory labour, certain cases, limitatively
enumerated, are not regarded as forced or compulsory labour. These are:

work by a person under detention; by a soldier; or by a conscientious objector
where civic service is required in the interest of the community. Here too the
prohibition of forced labour is reinforced by two international labour conven-
tions: the IL0 Convention Concerning Forced or Compulsory Labour of 1930
(No. 29) and the IL0 Convention Concerning the Abolition of Forced Labour
of 25 June 1957 (No. 105).
The question of forced or compulsory labour, after being the subject of
discussions both at the United Nations and at the ILO, has been the theme of
several proceedings instituted before international institutions responsible
for implementing human rights. First, in the Ghana vu. Portugal case in
which the question to be answered was whether IL0 Convention No. 105 had
been violated in the African territories which at that time were Portuguese
colonies; then in the Portug al v. Liberia case, in which the question of
forced labour in Liberia was raised in regard to IL0 Convention No. 29. In
the framework of the European Convention on Human Rights, the two best-
known cases are Iversen II. Norway, concerning compulsory service imposed
on a dentist required to exercise his profession in the northern part of the
country, and Gussenbauer v. Austria, which concerned the compulsory and
free assistance of accused persons by lawyers and resulted in a friendly
settlement through the reform of the Austrian system of legal assistance.
(b). Protection offreedom
(i). FREEDOM OF MOVEMENT
The recognised rights qf everyone
What is involved here is first of all the right to freedom of movement within
the territory of a State and.freedom to choose oples residence for all who are
lawfully within that territory. The requirement concerning the lavfulness
(Covenant and American Convention) or regularity (European Convention)
of residence within the territory of a contracting State immediately rules out
those who do not respect the administrative regulations governing entry and
residence within the territory of a State and, in particular, aliens who have
entered the country clandestinely. This provision constitutes, to a certain
extent at least, a tautology since its result is to protect freedom of movement
within the national territory for those who previously have been allowed by
the State to exercise that same freedom.
In addition, everyone is free to leave any country, including his own.36 The
terminology employed recalls that of the Universal Declaration; in the case of
the European Convention, the authors of the Protocol to that Convention
proposed to give the broadest possible meaning to the freedom to leave any
region whatsoever, regardless of whether it is or is not a State.
These two recognized rights of all persons may be subject to certain re-
strictions limitatively but in fact, fairly broadly, enumerated in the para-

graphs following the provisions protecting them. These are, firstly, the
restrictions which, provided for by law, constitute measures necessary to
protect national security, public order (ordre public), public health or morals
or the rights and freedoms of others.7 It will be noticed (and the matter was
amply discussed in Europe at the time of the preparation of Protocol No. 4 to
the European Convention on Human Rights) that no restriction is admissible
according to the Covenant if it is motivated by the requirements of the
economic welfare of the country or, as was proposed at the time of the
preparation of Protocol No. 4 to the European Convention, by the require-
ments of economic prosperity. For various reasons, and partly because the
notion of ordre public, as it is understood in French, covers at least some of
the aspects of the need to ensure the countrys economic prosperity, it was
decided not to include this factor among those governing the admissibility of
a restriction.
The recognixed rights qf natio72als
Under the terms of the European Convention and the American Conven-
tion on Human Rights,jx only nationals are protected against expulsion, by
means either of an individual or a collective measure, from the territory of
the State of which they are nationals. The problem here is less that of pro-
tecting this right than that of enforcing it against the authority of the State,
which is free to define who its nationals are. For a State might be tempted to
get around the prohibition against the expulsion of nationals by depriving
those concerned of their status as nationals. This question, however, is not
settled by the conventions on human rights, although general international
law does contain certain elements limiting the right of the State to deprive
persons of their status as nationals.
The Covenant, for its part, provides that no national shall be arbitrarily
deprived of the right to enter his own country. In the regional conven-
tions on human rights, the country referred to is identified with the State
of which the person in question is a national. Here, too, there still remains a
risk that a State might define its nationals in such a way as in fact to deprive
certain categories of persons of the right to return to what is in reality their
own country, for instance, their country of permanent residence.
The recognixed rights qfaliens
Of signal importance for aliens, the right not to be expelled from the terri-
tory of the State where they permanently reside is protected by the Cove-
nant in Article 13 which stipulates:
An alien lawfully in the territory of a State Party to the present Convention may be
expelled therefrom only in pursuance of a decision reached in accordance with law and shall,
except where compelling reasons of national security otherwise require, be allowed to
submit the reasons against his expulsion and to have his case reviewed by, and be repre-
sented for the purpose before, the competent authority or a person or persons especially
designated by the competent authority.
In actual fact, the text contains so many loopholes that the principle alone
seems to remain, the rule being submerged by countless exceptions.
In the regional conventions on human rights, the collective expulsion qf
aliens is prohibited.4 This provision has a fairly unusual character in conven-
tions protecting individual rights in that it concerns a group of individuals
and no longer merely individuals in isolation. Its historical origin is obvious:
it provides at least partial protection against the temptation for a State to
denationalize a minority group, in order to transform its members into aliens,
and subsequently to expel them.
(ii). RIGHT OF ASYLUM
Vigorously proclaimed in the Universal Declaration of Human Rights (Art.

14), the right of asylum was not provided for by the drafters of the Covenant,
nor indeed by the European Convention on Human Rights. The American
Convention alone protects asylum in the form, both of the right to seek and
be granted asylum and the right not to be deported to a country where the
person concerned would fear for his life or freedom (principle of non-
deportation).
At the United Nations, the right to asylum was the subject of a Declaration
adopted on 14 December 1962.4 Moreover, a draft Convention concerning
territorial asylum is at present being drafted on the initiative of the High
Commissioner for Refugees. But it is the inter-American system which has
sought, with the greatest perseverance, to ensure the protection of the right
to asylum, as is borne out by the following Conventions: the Convention on
Asylum of 20 February 1928, the Convention on Political Asylum of 26 De-
cember 1933, the Convention on Territorial Asylum of 28 March 1954 and the
Convention on Diplomatic Asylum of 28 March 1954.
Refugees, that is to say, persons who have been granted asylum-and, to a
certain extent, also, those seeking asylum-are protected by the Convention
Relating to the Status of Refugees of 28 July 1951, the scope of which, in time
and space, was enlarged by the Protocol of 31 January 1967. Under the terms
of its Statute of 14 December 1950, the United Nations High Commissioner
for Refugees is responsible for assuming the function of providing interna-
tional protection for refugees. In addition, it is to be noted that, owing to the
deterioration of the refugee problem in Africa, the Organization of African
Unity drew up the Convention Governing the Specific Aspects of Refugee
Problems in Africa, dated 10 September 1969.
It is to be noted in conclusion that, by a fairly daring interpretation, the

European Commission of Human Rights has judged that the deportation or
extradition of an alien to a particular country may in exceptional circum-
stances give rise to the question whether there would be inhuman treat-
merit, (which is prohibited). Such considerations might apply in cases
where a person is extradited to a particular country where, due to the very
nature of the regime of that country or to a particular situation in that
country, basic human rights. might be either grossly violated or entirely
suppressed. Thus, by means of the prohibition against inhuman treatment,
protection is afforded, if not for the right to asylum, at least for the non-
deportation principle in the context of Western Europe.47 As this prohibition
is also included in the universal instruments on human rights, and especially
in the Covenant, the question may be raised as to whether this case-law does
not also have a universal bearing.
(iii). THE RIGHTTOFREEII~M ANII~A~TY
Everyone has the right to freedom and safety: to freedom which is a state
enjoyed in the present, safety adds the certainty that that state will continue
to be enjoyed in the future. The State must, however, be able to defend itself
against those who interfere with the social order, for which it is responsible,
by depriving them of their freedom.
Cases where it is authorixed4 to deprive the individual of his freedom
Article 9 of the Covenant stipulates that arrest and detention shall not be
arbitrary and that no one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law. It
is thus the national legislature which has to specify those cases where a
person can be deprived of his freedom and also to define the ground and
procedure for so doing. The individual must then be deprived of his freedom
in a manner which is not arbitrary, 49 i.e. neither unlawful because contrary
to the law, nor unjust because unreasonable and contrary to the idea of
justice.
The European Convention on Human Rights has availed itself in this con-
nection of a method different from that of the Covenant in enumerating
limitatively-actually defined in fairly general terms-the sole cases in which
a person can be lawfully deprived of his freedom, namely: detention after
conviction; arrest or detention for non-compliance with the lawful order of a
court or in order to secure the fulfilment of any obligation prescribed by law;
preventive detention; detention of a minor; arrest or detention with a view to
deportation; expulsion; or extradition.
Practically all of these cases have resulted in an abundance of case-law
being formulated by the European Commission and Court of Human Rights,
and mention may be made, by way of example, of the Lawless v. Ireland
and Engel and others v. the Netherlands cases as well as the Vagrancy
cases.
Guarantees granted to persons deprived qf theirfreedoml
A person deprived of his freedom shall benefit from certain guarantees so

as to be able to defend himself against unjustified arrest or detention and to
recover his freedom. These guarantees are: the right to be informed of the
reasons for arrest; the right to be brought promptly before a judge and to be
tried within a reasonable time or to be released-this raises the problem of
the duration of remand in custody and of preventive or provisional deten-
tion; and the right to recourse before a court so that it can rule without
delay upon the lawfulness of detention and the right to compensation in the
event of unlawful arrest or detention.
Treatment of pmsoners
All persons deprived of their liberty must be treated with humanity and
with respect for the inherent dignity of the human person. Furthermore, a
number of rules are aimed at the establishment of a liberal penitentiary
system, the goal of which should be the reformation and social rehabilitation
of prisoners. In particular, accused minors and young delinquents should be
separated from adults; similarly, accused persons should be segregated from
convicted persons.
These few principles are developed and clarified in the Standard Minimum
Rules for the Treatment of Prisoners which were adopted at Kyoto by the
First United Nations Congress on the Prevention of Crime and the Treat-
ment of Offenders in its resolution of 30 August 1955. Not binding on States,
these Rules are aimed at setting out what is generally accepted as being
good principle and practice in the treatment of prisoners and the manage-
ment of institutions (Art. l). In addition, the UN Human Rights Sub-
Commission has prepared a draft body of principles for the protection of all
persons under any form of detention or imprisonment (See UN doc.A/35/401
(1980)).
(c). Protection qf the right to justice
(i). THEGUARANT~~~~RI~HTS~~~~~Y~NE
The right to effective remedy
Anyone whose rights and freedoms are violated shall have an effective
remedy before the competent judicial, administrative, legislative or other
authority. This remedy shall exist notwithstanding the fact that the viola-
tion has been committed by persons acting in an official capacity. It follows
that by such remedy the person concerned shall be able to defend his human
rights not only against the organs of the State, but also against other private
persons (notwithstanding that. .). We thus encounter the problem, de-
bated by jurists, of the absolute character of human rights, that is to say,
opposable both to the State and its organs and to mere individuals, and
therefore applicable both in the relations between private persons and in the
relations between the individual and the State: this is the problem known in
the writings as that of the Drittwirkung of human rightss7
The right to a fair hearing
After establishing as a principle the equality of all before the tribunals and
courts of justice-and in particular of nationals and aliens-the Covenant
enumerates in its Article 14.1 certain rights that all justice worthy of that
name is in duty bound to respect: everyone has the right to a fair and public
hearing by a competent, independent and impartial tribunal; the hearing
and the judgment shall be made public, although exceptions to this rule are
authorized, particularly in the interest of minors and justice. These rights
which are granted to all persons, natural or legal, accused, plaintiff or defen-
dant, do not however seem to apply to all categories of litigation, but only to
disputes relating to civil rights and obligations and to criminal charges. While,
in general, it is relatively easy to define a criminal charge (although hesita-
tions may arise in relation with disciplinary procedures), it is far more
difficult to pinpoint the notion of civil rights and obligations. Is what is
involved all that is not covered by criminal law? Is civil the equivalent of
private, in contrast with public? The question remains open.
(ii). THEGUARANTEEDRIGHTS~FA~~~~EDPE~SONS
A person charged with a criminal offence has additional and specific rights
which are necessary for him to ensure his defense. A person charged with a
criminal offence shall, first of all, be presumed innocent until proven guilty
according to law. This is a right which constitutes the very basis of all modern
criminal law. But this right would be meaningless if it were not founded, as is
the case in Article 15 of the Covenant, on the principle of the legality of
offences and penalties, that is to say on the prohibitions of all retroactive
penal legislation, it being understood that the general principles of law rec-
ognized by the community of nations are sufficient for an act or omission to be
recognized as criminal. This last interpretative provision clearly applies to
Nuremberg Law and first of all to crimes against humanity.
In order to defend himself, an accused person shall be entitled to the
following minimum guarantees, in full equality:
(i) to be informed of the nature and cause of the charge against him;
(ii) to have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing;
(iii) to be tried without undue delay;

(iv) to be present at his trial and to defend himself in person or through
legal assistance of his own choosing or, in certain conditions, to have
legal assistance assigned to him without payment;
(v) to examine the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf;
(vi) to have the free assistance of an interpreter if he cannot understand
the language used in court;
(vii) not to be compelled to testify against himself or to confess guilt;
(viii) to be able to appeal to a higher tribunal if convicted of a crime;
(ix) to be compensated when there has been a miscarriage of justice;
(x) not to be tried or punished twice for the same offence.
(d). Protection of the family and ofprivacy
(i). PROTECTION OF THE FAMILY
The right to marry
Men and women of marriageable age have the right to marry and to found a
family. The marriage cannot be entered into without the free and full consent
of the intending spouses. These rules are developed and clarified in the
United Nations Convention on Consent to Marriage, Minimum Age for Mar-
riage and Registration of Marriages of 10 December 1962, and in the Recom-
mendation on the same subject, adopted by the General Assembly by its
Resolution 2018 (XX) of 1 December 1965.
In addition, appropriate measures must be taken to ensure equality of
rights and responsibilities of spouses as to marriage, during marriage and at
its dissolution. This provision is one which is far from being applied in all
countries, as was shown by the work of the World Conference of the UN
Decade for Women, in 1980.7
The right to respect for ones family l$e
Being the natural and fundamental group unit of society,the family is enti-
tled to protection by society and the State.H This does not concern solely the
lawful family, for the natural family is just as entitled to protection. How-
ever, in order to be protected, family life must first of all exist, in the
sense that there must be bonds of kinship between those concerned, as well
as a community life or, at the very least, effective and regular relations.g
Although the conceptions of the family obviously vary from one society
to another, it is generally recognized that practically everywhere the na-
tural family is less well treated than the lawful family and that such discrimi-
nation must end, particularly so far as the situation of the children is
concerned.
Respect for family life means first and foremost that the family shall be
protected as a unit, both in respect of parents and in respect of parents and
children. Thus, for instance, husband and wife are entitled to live together in
the same country,70 a very important requirement in the case of migrant
workers, the son is entitled to join his father,71 etc.
The rights of children
Every child is entitled, without any discrimination, to such measures of

protection as are required by his status as a minor, on the part of his family,
society and the State. He shall be registered immediately after his birth,
have a name and be able to acquire a nationality. These few rules are
developed and considerably enlarged in the Declaration of the Rights of the
Child, adopted by the General Assembly of 20 November 1959 by its Resolu-
tion 1386 (XIV), and are also the subject of many IL0 Conventions.
In addition to the legislative and other achievements of the International
Year of the Child in 1979, the UN Commission on Human Rights continued at
its 1981 session its work on a draft convention on the rights of the child.7
(ii). THE PROTECTION OF PRIVACY
Honour, reputation and private life
No one shall be subjected to arbitrary or unlawful interference with his

privacy, nor to unlawful attacks on his honour and reputation. 74Private life,
increasingly threatened by modern scientific and technological achievements
in the form, for instance, of wiretapping devices and data banks, can scarcely
be defined with precision. It signifies different things7 according to the
society involved and the environment in which the individual lives, and also
takes on different meanings in the course of time. Since, in these circum-
stances, it is almost impossible to lay down hard-and-fast rules, the entire
matter must be followed with constant vigilance, as recognized by the UN
Commission on Human Rights.7
Home and correspondence77
The individuals home is inviolable. For interference to be permissible it

must not be arbitrary, that is to say neither unreasonable nor capricious, and
must be provided for by law. Freedom and secrecy of correspondence must
be respected under the same conditions; by correspondence is to be under-
stood, of course, all means of communication, such as the telephone, tele-
printer, telegram, etc. Abuses in this field seem frequent, even though they
are difficult to detect and to prove.78
(e). Protection of intellectual activity
(i). FKEEDOMOFTHOUGHT,CONSCI~NCEAN~RELIGION
Everyone shall have the right to freedom of thought, conscience and reli-
gion,7R which includes freedom to have or to adopt (and consequently to
change) a religion or belief of his choice, and freedom, either individually or in
community with others and in public or in private, to manifest his religion or
belief in worship, observance, practice and teaching. Consequently, no one
shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice. For some years now, the United
Nations has been striving to draw up a Convention or Declaration concerning
religious intolerance which would develop, while enlarging them, the rules
mentioned above. However, such a Convention or Declaration is a long way
from being achieved.80
Freedom of conscience and religion is always invoked in support of the
right to conscientious objection, of which it is alleged to constitute the legal
basis: long limited to the refusal to bear arms on religious grounds, conscien-
tious objection now tends to be justified also on moral or even political grounds.
Furthermore, it is put forward to justify refusal to carry out other orders or
actions, deemed to be unlawful or illegitimate, for instance, by a doctor
refusing, on religious or moral grounds, to practise abortion. The problems
arising here are always hard to resolve.
In respecting freedom of conscience and religion, States also undertake to
respect the freedom of parents to ensure the religious and moral education of
their children in conformity with their own convictions.x Once again, giving
effect to this freedom is not without some difficulty, as is shown by the
experience of the European Convention on Human Rights.
(ii). FREEDOMOF OPINION, EXPRESSION, INF~KM.~TIoN,~ND COMMUNICATION
A pre-eminent human right, insofar as it allows everyone to have both an

intellectual and political activity, freedom of expressions4 in the broad sense
actually includes several specific rights, all linked together in a continuum
made increasingly perceptible by modern technological advance. What is
primarily involved is the classic notion of.freedom qf opinion, that is to say,
the right to say what one thinks and not to be harassed for ones opinions.
This is followed by freedom of expression, in the limited sense of the term,
which includes the right to seek, receive and impart information and ideas,
regardless of frontiers, either orally, in writing or in print, in the form of art,
or through any other media of ones choice. When freedom of expression is
put to use by the mass media, it acquires an additional dimension and be-
comes,freedom qf i%formation. A new freedom is being recognized which is
such as to encompass the multiform requirements of these various elements,
while incorporating their at once individual and collective character, their

implications in terms of both rights and responsibilities: this is the right
to communication, in connection with which Unesco has recently undertaken
considerable work with a view to its further elaboration and implementation.8
The political and social bearing of these freedoms is immense, and it is for
this reason that all the international instruments on human rights, and first
of all the Covenant, in Article 19, paragraph 3, rightly stress that the exer-
cise of these freedoms carries with it special duties and responsibilities,s
justifying certain restrictions. These, however, expressly provided by law,
must be necessary for respect of the rights or reputations of others or for the
protection of national security or of public order, or of public health or morals.
It is not always easy to decide on the cogency or lack of cogency of any
particular restriction, as is shown by certain cases. Among the most impor-
tant ones brought before the organs of the European Convention on Human
Rights are the case De Becker v. Belgium (total deprivation of the freedom of
expression of a collaborator with the occupying authorities during the war),
the case De Geillustreerde Pew. N.V. v. the Netherlands (concerning the
extent to which copyright may constitute a restriction of freedom of expres-
sion), the case Halzdyside v. United Kingdom (concerning publications con-
sidered obscene), the case Sunday Times v. Urzited Kingdom (prohibition by
the courts against the publication of an article, deemed to constitute interfer-
ence in a case pending before the courts), the case Sac&i v. Italy (does the
State monopoly over television broadcasts cover cable television broadcasts?),
etc.
Certain abuses of freedom of expression are expressly stigmatized by the
Covenant. Article 20 prohibits any propaganda for war and any advocacy
of national, racial or religious hatred that constitutes incit,ement to discrimina-
tion, hostility or violence.xx Moreover, in order to guard against the danger
to peace between peoples of the publication of inaccurate reports, the United
Nations was led to draw up the Convention on the International Right of
Correction of 16 December 1952. This Convention provides for a procedure
whereby publication of a communiqub correcting an inaccurate report may be
obtained. It is certain that the right to reply or make a correction is also of
very great interest for private persons in the event of their honour and
reputations being attacked. While the law of a fair number of States contains
provisions establishing such a right or machinery for attaining the same
objective (through the establishment of a Press Council, for instance),xY only
the American Convention on Human Rights includes as a human right the
right to reply and to make a correction (Art. 14).
cf. Protection of political alzd trade union activity
Political activity which necessarily presupposes respect for intellectual free-
doms, and first of all freedom of thought, opinion and expression, is bound to
be manifested collectively through meetings. And the community of ideals, if
not of interests, thus revealed is bound to give rise to freely constituted

associations leading, thanks to specifically political rights, to the acquisition
and defence of political power. In addition, freedom of association, in the
form of the right to form trade unions, is aimed at allowing both workers and
employers to organize themselves for the purpose of promoting and defend-
ing their social and economic interests.
(i). FREEDOMOFASSEMBLY
The international human rights instruments, and first of all the Covenant,go
recognize the right of peaceful assembly. The restrictions to which this right
may be subject in conformity with the law are those which are necessary, in a
democratic society, in the interests of national security or public safety,
public order, the protection of public health or morals or the protection of the
rights and freedoms of others. Freedom of assembly constitutes an essential
component of the political and social life of a country, as pointed out by the
European Commission of Human Rights in its report on the Greek Case.
(ii). FREEDOM OF ASSOCIATION ANDTRAIIE IJNION FREEDOM
Everyone shall have the right to freedom of association with others, includ-
ing the right to form and join trade unions for the protection of his interests.Y
This two-fold freedom may of course be subject to the usual restrictions
which, provided by law, are necessary in a democratic society. But, in addi-
tion, the exercise of this right by members of the armed forces and the
police may be subject to specific legal restrictions.
Freedom of association, in regard to trade unions, is provided for not only
in the Covenant on Civil and Political Rights (Art. 22), but also in the Cove-
nant on Economic, Social and Cultural Rights (Art. 8), the latter being in this
instance far more precise. But trade union freedom is also-or rather pri-
marily-protected by the International Labour Organisation pursuant to the
provisions of its Constitution and of several IL0 Conventions. Of these, the
following are to be singled out, as was observed above: Convention No. 87
on Freedom of Association and Protection of the Right to Organise of 9 July
1948, Convention No. 98 on the Right to Organise and Collective Bargaining
of 1 July 1949 and Convention No. 135 on Workers Representatives of 23
June 1971.
Many are the problems which have arisen concerning respect for freedom
of association within the IL0 (see chapter 12 infra) and in the framework of
the European Convention on Human Rights. Here mention may be made in
particular of the cases brought before the European Court of Human Rights,
namely the cases National Union of Belgian Police v. Belgium, Swedish
Union qf Locomotive Conductors u. Sweden and the Schmidt and Dahlstrom
v. Sweden case.
(iii). POLITICAL RIGHTS
While civil rights allow the individual to enjoy his personal freedom and his
autonomy, political rights are necessary for him to be able to organize his
participation in the public affairs of the community to which he belongs.
These are pre-eminently political rights in that they provide justification of
the legitimacy and lawfulness of the power to be exercised in the community
established as a State, which is the modern form of political authority. This is
the perspective from which the following rights are provided for by the
Covenant: (1) the right to take part in the conduct of public affairs, directly
or through freely chosen representatives; (2) the right to vote and to be
elected at genuine periodic elections, which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors; (3) the right to have access, on general terms of
equality, to public service in ones country.
These rights are to be implemented without any discrimination and with-
out unreasonable restrictions; in other words, it will not be easy for them to
be implemented and legislation relating to the exercise of these rights, both
national and international, is absolutely indispensable. In this connection,
neither the UN Convention on the Political Rights of Women of 20 December
1952, nor the OAS Convention on the Granting of Political Rights of Women
of 2 May 1948 depart, on the whole, from the formulation of very general
rules.
(g). Protection ofeconomic activity
Linked up with the nature of the States political and social system, the
economic rights of man may be grouped together around two poles repre-
sented by the right to work, on the one hand, and the right to property, on
the other. While the right to work has found its proper place--first place-in
the Covenant on Economic, Cultural and Social Rights and in the legislative
work of the International Labour Organisation, the status of the right to own
property in international human rights law is uncertain, to say the least.
Although it is included in the Universal Declaration of Human Rights (Art.
17),s it has been left out of the two Covenants of 1966. Nevertheless, it is
contained in the International Convention on the Elimination of All Forms of
Racial Discrimination of 1966 where it is mentioned as one of the civil rights
and not as an economic, social or cultural right: the right to own property
alone as well as in association with others (Art. 5). Admittedly, it was
included, after a great deal of discussion, in the European Convention on
Human Rights, not as the right to own property, but as a simple right to the
peaceful enjoyment of (ones) possessions (Art. 1 of the First Protocol to
the Convention). Likewise, it is included in the American Convention on
Human Rights as the right to property, although exercise of that right is
subject to the fact that usury and any other form of exploitation of man by
man shall be prohibited by law (Art. 21).
If one wishes to interpret this uncertainty which currently reigns in regard
to the right to property as a human right, one may sum it up in two necessar-
ily political attitudes. For some, the right to property is not an independent
human right, for it is and must be an expression of the right to work for
everyone and its exercise must be limited accordingly. It follows that it is not
necessary to give the right to property a separate place since the right to
work occupies its rightful-first place, as we have just seen-in the universal
human rights instruments. For others, there can be no freedom and security
of the human person without a certain amount of property, even if this is
reduced to the basic elements of personal property. In this case, the right to
property is not so much an economic right as a political right, and it is the
implicit but indispensable basis of all the other civil and political rights in the
international human rights instruments.
If there can be no expectation of this controversy being settled in the near
future, it is partly because, in regard first of all to individuals, it is now
tending to be superseded by the need to guarantee, protect and restore first
qf all the property of peoples and nations. The Covenant itself stresses this
since its Article 47 states that nothing in it shall be interpreted as impairing
the inherent right of all peoples to enjoy and utilize fully and freely their
natural wealth and resources. Such also is the purpose of Resolution 1803
(XVII) of the UN General Assembly of 14 December 1962 on Permanent
Sovereignty over Natural Resources,YR and such, lastly, is the very object of
the new international economic order, the implications of which for human
rights are presently the subject of study within the UN.
(h). Restrictions to civil and political rights

The exercise of civil and political rights may be subject to four series of
restrictions. I shall not deal with those that are the consequence of measures
of derogation justified by certain exceptional circumstances. Nevertheless,
mention must be made of the restrictions expressly provided by international
instruments, reservations to those instruments and forfeiture of the right to
exercise human rights in the case of abuse.
(i). PRESCRIBEDR~TRICTI~NS
The restrictions provided by the various international instruments on civil

and political rights in fact constitute conditions governing their exercise.
They are generally enumerated in paragraphs 2 or 3 of those Articles which,
in their paragraph 1, guarantee various rights. The Covenant, like other
international instruments, contains a general clause listing the different re-
strictions. While the list of restrictions varies from one right to another,
being adapted to their exercise, the following three requirements are practi-
cally always to be found:
(1) the restrictions must be provided by law;

(2) they must be deemed to be necessary in a democratic society;
(3) they must be applied in the interests of national security, public safety
or public order, or for the protection of public health or morals or the
protection of the rights and freedoms of others. lo3
The restrictions thus permitted to the guaranteed rights cannot be applied
for any purpose other than that for which they have been prescribed. Al-
though no provision of this kind is contained in the Covenant, in contrast with
the regional Conventions,04 there is no doubt that the prohibition against the
misuse of power and procedure constitutes a general principle governing the
implementation and interpretation of international treaties.
On the other hand, the Covenant expressly provides for what might be
called the most-favoured individual clause: nothing in it, indeed, may be
interpreted as limiting or derogating from any human rights which might be
recognized or better protected under national law or international law.
(ii). RESERVATIONS
The Covenant contains no provision regarding reservations, contrary to the

regional Conventions on human rights. loti It is thus general international law,
and in this particular case, the Vienna Convention on Treaties Law which
applies. A reservation in respect of a provision in the Covenant is therefore
possible provided that it is not incompatible with the object and goal of the
Covenant. In practice, several States, have, by setting forth reservations,
limited or altered the bearing of certain rights guaranteed by the Covenant. lo7
(iii). FORFEITURE OF THE RIGHT TO EXERCISE HUMAN RIGHTS
According to Article 5 of the Covenant-the equivalent of which is contained

in the regional Conventions on human rights-nothing in it may be inter-
preted as implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the rights and
freedoms recognized herein or at their limitation to a greater extent than is
provided for in the present Covenant. This provision, which follows straight
on from Article 30 of the Universal Declaration, provides not for the forfei-
ture of human rights but for the forfeiture of the right to exercise them for
the purpose of destroying human rights or limiting them to a greater extent
than is prescribed. Relating at once to the State, the individual and groups, it
consequently makes it binding not only on the State but also on private
persons to respect human rights: here again there arises the problem of the
Drittwirkung of human rights referred to above.
CONCLUSIONS by Frank C. Newman
What lessons might we learn from errors committed in the application of the
human rights instruments promulgated by the United Nations over the first
thirty years of its existence?
(a). The error of assuming that the best words are not operative
When an individual asks what the law says about his or her civil and political
rights, he or she usually wants a reply that articulates the maximum protec-
tion. Thus, hypothetically, if the inquiry were to relate to abusive practices in
mental hospitals in the United States, the reply should explain not only the
cruel and unusual punishment clause of the United States Constitution but
also the cruel, inhuman or degrading treatment or punishment clauses of
the International Bill of Human Rights.
For various reasons, sometimes explicable, jurists generally have not fo-
cused on the maximum protections. Illustratively, consider these excerpts:
What must be avoided. (are) the conflicts which might arise between the instruments
designed for the protection of our rights and freedoms. Conflicts of jurisdiction, or discrep-
ancies in the definition, interpretation or application of the same right, could only bring
confusion into a subject which ought to be clear and precise.
I think it is best to speak about the rights of men to live and to be free in the context of the
European Convention on Human Rights, if only because the issues are so vast, seen on a
world level, as to become unmanageable. But I shall of course want to say something about
the United Nations Covenants. Another reason is that the issue of the right to live and be
free which come our way and force themselves upon us are much better understood in the
closer context with which we are familiar of Europe.
In fact, discrepancies in the definition, interpretation or application of the

same right do of course exist. We must identify them, as well as the confu-
sion to which they give rise, in order to surmount them. On many occasions,
especially when the best words seem inoperable, or unenforceable, or illu-
sory, we may conclude that a lesser protection should be sought. That will
come as no surprise to domestic lawyers, who often focus more on lesser
(statutory) than on grander (constitutional) rights.l12 Nonetheless we must
repudiate whatever tactics and strategies help perpetuate the myth that the
grander rights are mere aspirations, not yet legitimately the business of
lawyers.
Related myopia are reflected in these comments:
With the exception of the Western European area, human rights are still a political rather
than a legal issue.li4
Of the many international documents containing the proclamation of procedural rights and
guarantees, we will discuss here only the 1950 European Convention, whose provisions are
not merely theoretical but are judicially enforceable.
Many jurists who distinguish legal from political questions and judicially
enforceable from merely theoretical provisions, tend to forget that when
human rights law is violated the victims usually do not care whether their
remedies are labeled political, legal, or judicial. What must be consid-
ered pertinent are all the legal provisions and all the precedents that in fact
help to void death sentences, stop torture, get innocent people out of prison,
ensure fairer trials, strike at tyranny, starvation, related evils. It is of little
concern whether those results are sometimes achieved by political rather
than legal means or by an ombudsman and other investigators rather than
by judges. The over-all insistence of the United Nations that individuals
should always benefit from whatever rights are best is evidenced by these
words in Art. 5.2 of Civil and Political Rights Covenant:
There shall be no restriction upon or derogation from any of the fundamental human rights
recognized or existing in any State Party to the present Covenant pursuant to law, conven-
tions, regulations or custom on the pretext that the present Covenant does not recognize
such rights or that it recognizes them to a lesser extent.
(b). The error qf assuming that the less obviously applicable words are not
operative
Does international law require a fair hearing? The answer is Yes, often.
Three major documents contain these clauses:
Universal Declaration, Article 10
Everyone is entitled. to a fair and public hearing by an independent and

impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him.
Covenant on Civil and Political Rights, Article 14 (1)
In the determination of any criminal charge against him, or of his rights

and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal estab-
lished by law..
European Convention on Human Rights, Article 6 (1)
(1) In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established by
law.
-(Note that, in the lines above civil appears instead of in a suit at

law.) Interpreting all those words is tricky.16 What must be stressed
even more is that the requirement of a fair hearing is also articulated by
countless other words, in each of those three documents and also in many
other documents. Examples in the Covenant alone are Articles 2.3 (an effec-
tive remedy), 9 (detained persons), and 13 (aliens), plus wording as to what is

respect, cruel inhuman or degrading treatment or punishment, reason-
able, necessary, arbitrary or unlawful. Each of those words, by itself,
may imply rules that relate to due process, natural justice, equality of arms,
audi alteram partem.17
Other illustrations of less obviously applicable words abound. The pro-
scriptions of torture and of cruel, inhuman and degrading treatment that we
quoted above, for instance, hardly justify ignoring this command of Art. 10.1
of the Covenant on Civil and Political Rights: All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent
dignity of the human person. That Art. 18 of the Covenant deals mostly with
religion, whereas Art. 19 protects opinion and expression, by no means im-
plies that Art. 18 therefore has no impact on the freedom to manifest ones
non-religious beliefs. Art. 15.3 of the Covenant on Economic, Social and
Cultural Rights requiring that governments respect the freedom indispens-
able for scientific research and creative activity clearly relates to the free-
dom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through
any other media that Art. 19.2 of the Covenant on Civil and Political Rights
purports to assure. Yet it may supplement those words, too.
Which protects civilians more, the doctrine of genocide or the doctrine of
crimes against humanity? In recent years too little attention has been focused
on that question.
In sum, ALL WORDS OF ALL RELEVANT DOCUMENTS MUST BE
EXAMINED. If they are not, people will be ill-advised as to what truly are
their human rights. The case law and practice that affect only the obviously
applicable words may be misleading as to the full import of words less obvi-
ously applicable. lx
(c). The error qf assuming that precedents are persuasive merely because
they exist
When the highest of courts deal with only a handful of the innumerable
problems, to visualize or chart a hierarchy of precedents is complex. Thus, to
contend that the human rights clauses of the UN Charter are binding be-
cause, in its Namibia opinion, the International Court of Justice said so, is
one thing. It is quit,e different to construct borderlines for free speech, fair
trial, political rights, etc. merely because the Supreme Court of Senegal, a
district court in Oregon, a legal adviser in New Zealand, an ad hoc UN
committee, or Afro-Asian or Latin American or Eastern or Western dele-
gates said so.
In this chapter there is no room for examining theories on how rationally to
apply precedents. We can note, though, that in the human rights field the
matter rarely has been debated.
I do not suggest that the compilers of precedents should ignore, gloss over,
or censure any historical fact. We observed above, however, that the pro-
ducers of case law and practice as to civil and political rights include judges,
diplomats, investigators, censurers, etc. Obviously the persuasiveness of
what all of them did and said is variegated. Users of their work will not
promote human rights by arguing that, merely because all those people really
did say and do certain things, future decisions as to comparable problems
have thus been prescribed.
(d). The error of assuming that precedents do not exist when in fact they do
Case law and practice frequently are forgotten, not always unintentionally.
Sometimes, though, the failure to mention precedents is so glaring that one
tends to suspect conspiracies of silence.
In one UN document a country pronounced startlingly that On the interna-
tional level, the only crime that may be described as a crime against human-
ity would seem to be genocide. Another country criticized a UN text
which confirmed that the principles of the Geneva Conventions of 1949 must
be strictly observed by all Governments whether or not they had signed
them. A third State reported that there was no racial discrimination in its
country, apparently overlooking the many precedents that proscribe racial
discrimination via laws that affect immigrants and indigenous populations.
Perhaps the boldest of all pretentions are those that involve Art. 2.7 of the
UN Charter. Notwithstanding an immense jurisprudence that defines the
terms domestic jurisdiction and intervene, and notwithstanding their
own governments views and votes when some other government has been
the recipient, the practice of nearly all delegates whose governments stand
accused of civil and political rights violations is to invoke Art. 2.7. A study of
summary records, to show how nations react to other nations charges that
civil and political rights have been violated would, I think expose this somewhat:
What you allege is of course false. .
What we are doing, though regrettable, is not illegal, .
Several of you commit acts that are even more illegal and are worse
violators of civil and political rights than we are, .
Continued discussion by any of you will encroach on Art. 2.7 of the Charter.
In part, of course, precedents are not cited because they are not known,
because truly they have been forgotten, because jurists who should be the
worlds teachers concerning them are often inefficient and ineffective publi-
cists. Ready accessiblity to all documentation is what we most need to help
cure the sin of assuming that precedents do not exist when in fact they do.
(e). The error of assuming that precedents.from ones own nation are spe-
cially persuasive
We usually know more about our own national system than others, and that
knowledge naturally influences us. Yet by no means are a nations precedents
always apt or correct or persuasive as to international standards on civil
and political rights. To illustrate, for many years United States delegates
insisted strongly that, for the world, free speech should mean exactly what
the United States Supreme Court has said it means for the United States of
America; e.g. as to war propaganda and incitement of racial hatred. What,
we might ask, makes that argument compelling?
Similarly, with commendable soul-searching, the British recently attempted
to instruct us on exactly what is and is not torture. Unfortunately, with
rare exceptions they have not dealt with cruel, inhuman and degrading
treatment, which now of course is included in the international test regard-
ing torture.
The list of examples seems endless. Many governments that generally
treat their citizens well nonetheless exemplify blind spots. Nearly all gov-
ernments simulate astonishment when they are reminded that their own
practices regarding public emergency, ordre public, and analogous limi-
tations are not in accordance with international law. Too many governments,
for instance, would have us believe that certain economic development plans
and certain economic crises justify all sorts of abuses.
(f). The error qf assuming that foreign ministy pronouncements are

consistent
A great bulk of the case law and practice that affect civil and political rights
appears in documents pertaining to foreign ministry pronouncements. They
may concern bilateral relations; often their focus is multilateral--concerning
UN, Council of Europe, OAS, OAU and analogous matters.
Not surprisingly, diplomats and other representatives of nations often are
more intent on declaring their substantive views than on developing, even
within their own governments, consistent legal interpretations. Especially as
to civil and political rights do they sometimes appear reckless concerning
prior statements by their colleagues and predecessors.
It seems appropriate here to comment on a foreign ministry phenomenon
that for too long has not been given enough attention. Demonstrably, I
believe, foreign ministry officials who deal with civil and political rights
problems throughout the world often are uninformed about the human rights
laws that ought to affect those problems. Most delegates to the UN and other
international fora are acceptably informed (compared, say, with legislators
and administrators generally). Most of their colleagues back home, however,
as well as colleagues posted at embassies, consulates, etc., all too often are
inadequately trained, inadequately advised and inadequately motivated as to
human rights.
(A notable exception was in Santiago during the Fall of 1973 and in 1974
when courageous ambassadors to Chile provided asylum and helped set up
refugee centres. Even there, though, the concerns seemed more humanitar-
ian than juridical.)
(g). The error of assuming that civil and political rights are Western
The trouble with assuming that civil and political rights are Western is that
precedents from the West are then given more weight than those from other
areas of the world.
Many of the great documents are Western (Magna Carta, the English and
American Bills of Rights, the French Declaration of the Rights of Man, etc).
But many of the great freedoms, e.g. fair trial, have roots that are traceable
to Hammurabi, Cyrus, Eastern texts and innumerable non-Western jurists.
We must also keep in mind that non-Western contributions have been
notable in recent times. Lawyers in Africa, for instance, defending dissidents
in countries other than their own, have taught us a good deal about what the
right-to-counsel really should mean. From India we have learned much as to
imaginative and vigilant encouragement of the right-to-vote. Studies of tribal
customs have influenced our education as to what Art. 14 of the Civil and
Political Rights Covenant calls a competent, independent and impartial tri-
bunal established by law.
(h). The error of assuming that criminal laws concern criminal cases only
International criminal law is a vast and complex subject. Yet no one should
deny its potential impact on civil and political rights. Here there is no room
for a summary or prkcis of the case law and practice of international criminal
law. There is room, however, for a warning that repeatedly seems to go
unheeded.
This is the warning: Human rights activists must remember that a main
contribution of the relevant cmminal law is its proscmbing of illegal conduct.
What does that mean? It means that nearly all conduct proscribed in terms of
criminal responsibility, criminal punishment, etc. is also proscribed in terms
of civil responsibility, civil liability, etc.
Why is that important? For many reasons. A crucial fact is that too many
people, once the word Nuremberg is mentioned for example, immediately
begin discussing criminal intent, proof beyond a reasonable doubt and related
concepts of penal law. Because those topics are labyrinthine, we tend to
forget that governments and government officialsmay well have committed
illegal acts whether or not the acts also were criminal.
That is exactly what happened, for example, in numerous discussions of
Nuremberg and Vietnam. The cost to human rights law was not that possi-
bly guilty individuals escaped prosecution. The greater cost was that, too
often, all the talk of criminality left undiscussed and unsettled the basic
issues as to whether the new and brutal techniques of warfare that were used
in Vietnam were illegal or not.
When issues as momentous as these are left undiscussed and unsettled
(and there are many parallels to Vietnam), progress in civil and political
rights is not encouraged.
NOTES
1. The International Bill of Human Rights means the Universal Declaration, the two
UN Covenants and the Protocol to the Civil and Political Covenant. See F.C. Newman,
The International Bill of Human Rights: does it exist.7 in A. Cassese (ed.), Current
Problems of International Law: Essays on UN Law and on the Law of Armed ConjZict
(1975).
2. See Chapter 4, supra.
3. The OAS and Humavl Rights (1972), p. 109; 1968 Inter-American Yearbook on
Human Rights (1973), p. 191; see also A. Tankard, The Human Family, Human Rights
and Peace (1973), p. 27. There appears to be no need juridically to distinguish civil from
political rights. See the following excerpt from a speech made by Adlai Stevenson in 1964;
Civil rightsthe equality oj and dignity of the individual human being-is a universal
issue, whatever form it may take within domestic jurisdiction. Indeed, after peace and war,
it is the ultimate issue in almost all societies, the gut issue of the modern world. It is, I
suppose, one of the things that makes the modern world modern. (Emphasis added.)
4. Illustratively, see P. Hassan, The Word arbitrary as used in the Universal
Declaration of Human Rights: Illegal or Unjust?, 10 Ham). Int. L .J., 225 (1969), and
The International Covenant on Civil and Political Rights: Background and Perspective on
Article 9 (l), 9 Denver J. Int. L. and Pal., 153 (1973); cj. the tabular presentations on pp.
283, 291, 296-302 and 306-7 in F. C. Newman, Natural Justice, Due Process and the New
International Covenants on Human Rights: Prospectus, 1967 PzLblic Law 274; and see J.
Seeley, Article 20 of the International Covenant on Civil and Political Rights: First
Amendment Comment and Question, 10 Va. J. Int. L., 333 (1970).
5. See E. Schwelb, The International Court of Justice and the Human Rights Clauses
of the Charter, 69 AJIL, 337 (1972); F.C. Newman, Interpreting the Human Rights
Clauses of the UN Charter, 5 DH-HRJ, 283 (1972). But see A. Nartowski, Human Rights
in the UN System (Development Trends), 5 Polis Yb. Int. L., 131. 141 (1972-1973).
6. Unfortunately, many lawyers who use the UN Standard Minimum Rules seem to
neglect the terms of the opinion of the International Court of Justice in the Namibia Case
and the commentary thereon by E. Schwelb (see supra note 5).
7. Some human rights are, of course, considered as being more fundamental than
others, See, for example, Article 4, paragraph 2, of the Covenant on Civil and Political
Rights (No derogation. .may be made) and dot. EiCN.4Sub.21354, 18 October 1974,
p. 52 (fundamental human rights).
8. See generally IJnited Nations Action in the Field qfHuman Rights, 2nd ed., 1980
(UN Sales No. E.XIV.74.6). Before UN bodies, case law and practice tend to be given much
more weight than that which Article 38(l)(d) of the Statute of the International Court of
Justice refers to as the teachings of the most highly qualified publicists.
9. See generally the authorities noted in the annex to this book entitled a select
bibliography on international human rights law.
10. E. Rostow, The Role of International Law in International Politics, 12 Atl.
Community Q., 500, 501 (1974-1975).
11. On the two senses of the term self-executing, see K. Vasak, La convention
europkenne des droits de Ihomnze, Paris, 1964, p. 229. The question may also be raised in
connection with at least some of the provisions of the Covenant on Economic, Social and
Cultural Rights and the European Social Charter.
12. Cf. Les droits de Ihomme en droit interne et en droit international, Brussels, 1968,
590 pages.
13. UN dot. AiCONF.3215 (1968) para. 62.
14. See however John Carey, UN Protection qf Civil and Political Rights,
1970, 205 pages; Louis B. Sohn and Thomas Buergenthal, International Protection of
Human Rights, Bobbs-Merrill, New York, 1973, pp. 505-997.
15. See the various volumes of the Yearbook of the European Convention on Human
Rights.
16. See supra, Chapter 4.
17. Art. 3 of the Universal Declaration of Human Rights (UD), Art. 2 of the
International Covenant on Civil and Political Rights (Covenant), Art. 2 of the European
Convention on Human Rights (ECHR), Art. 1 of the American Declaration of the Rights
and Duties of Man (AD), and Art. 4 of the American Convention on Human Rights (ACHR).
18. Unless otherwise indicated, all the treaties quoted in the present section are
reproduced in the United Nations publication entitled Human Rights-A Compilation of
International Instruments ofthe United Nations (1978 edition).
19. See for instance the judgment of the Federal Constitutional Court of the Federal
Republic of Germany of 25 February 1975 and the judgment of the Constitutional Court of
Austria of 11 October 1974, which reach opposite conclusions.
20. See Application Bruggemann and Scheuter v. Federal Republic Germany (No.
6959175)declared admissible on 19 May 1976by the European Commission of Human rights.
As for the sources of the rulings of the commission and the European Court of Human
Rights, the reader is referred to the list of applications declared admissible, applications
dealt with and judgments rendered, which is given in the chapter on the Council of Europe,
infra, Part 11, Sub-Section 2, Chapter 16.
21. Art. 6 UD, Art. 6 Covenant, Art. 3 ACHR; no provision of this kind is included in
the European Convention.
22. In the case of the American Convention, its scope seems to be limited, by Article 1,
paragraph 2, to natural persons alone since it specifies: For the purposes of this
Convention, person means every human being. See Les droits de lhomme et les
personnes morales, Brussels, 1970, 166 pages.
23. The American Convention on Human Rights (Art. 20) not only protects everyones
right to a nationality but also adds to this the right to acquire the nationality of the country
where one was born (jz~ssoli).
24. Mention is also to be made in this context of the Convention of the Organization of
African Unity governing the specific Aspects of the Problem of Refugees in Africa of 10
September 1969 (RDH-HRJ, Vol III (19701,No. 1).
25. Art. 5 UD, Art. 7 Covenant, Art. 3 ECHR, Art 5.1 ACHR.
26. Cf., for instance, Art. 4 of the Covenant. See @Ta, Part I, Chapter 5.
27. See The Organization of American States and Human Rights, 1960.1967
(Washington, D.C., 1967) and Inter-American Yearbook of Human Rights, 1968
(Washington, D.C., 1973) and the reports on situation regarding human rights in several
countries by the Inter-American Commission on Human Rights and the Organization of
American States. See also K. Vasak, La Com,mission interamericaine des droits de
lhomme, Paris, 1968, p. 124 et seq. and p. 155 et seq.
28. Established by the Nuremberg Tribunal in its judgment of 19 August 1947. Cf.
Hanna Saba, Les droits de lhomme et le probleme de lexperimentation medicale,
Melanges Modinos, Ed. Pedone, 1968, p. 260 et seq and Protection of human rights in the
light of scientzfic and technological progress in Biology and Medicine, WHOICIOMS, 1974,
p. 181 et seq.
29. See Patients Bill of Rights adopted in the U.S.A. by the American Hospital
Association and Decree No. 74-22 of 14January 1974in France (RDH-HRJ, Vol. VII, 1974,
p. 541 et seq.); and UN does. A/34/273 (1979) and A/35/372 (1980).
30. Art. 4 UD, Art. 8 Covenant, Art. 4 ECHR, Art. 6 ACHR.
31. See the Preamble of the 1950 Convention which lists them.
32. Art. 8.3 Covenant, Art. 4.2 and 3 ECHR, Art. 6.2 and 3 ACHR.
33. See the report of the Commission set up under Art. 26 of the Constitution of the
ILO: Official Bulletin, Vol. XLVI, No. 2, Supplement II, April 1963.
34. See the report of the commission set up in pursuant of Art. 26 of the Constitution of
the ILO: Qfficial Bulletin, Vol. XLVI, No. 2, Supplement II, April 1963. See generally,
Chapter 12 i@a.
35. Art. 13 UD, Art. 12 Covenant, Art. 2, 3 and 4 Protocol No. 4 to the ECHR, Art. 22
ACHR.
36. Ibid..
37. Cf. Art. 12.3 of the Covenant. The European and American Conventions include, in
addition, the restrictions necessary in a democratic society for the protection of national
security and the prevention of crime.
38. Art. 3.1 Protocol No. 4 to the ECHR, Art. 22.5 ACHR.
39. Consider, for example, the case of the Transkei and the other independent
homelands established by South Africa.
40. Art. 12.4 Covenant.
41. This is precisely the problem of the Blacks in South hfrica originating from
Bantustans which have become independent.
42. A similar provision is contained in the American Convention (Art. 22.6) but the
European Convention contains nothing of the sort; an alien threatened by expulsion is
nonetheless not without protection since Art. 3 of the European Convention, in prohibiting
inhuman treatment, allows him, in accordance with the case-law of the national tribunals
and that of the organs of the Convention, to claim the right not to be expelled in the event of
his expulsion into a country exposing him, in that country, to the risk of being subjected to
inhuman treatment, both physical and moral. See infra, Chapter 17.
43. Art. 4, Protocol No. 4 to the ECHR, Art. 22.9 ACHR.
44. The European Convention confines itself to prohibiting the collective expulsion of
aliens (Art. 4 of Protocol No. 4 to the Convention).
45. Declaration on Territorial Asylum, adopted by Resolution 2312 (XXII) of the
General Assembly. A Resolution concerning the right to asylum was also adopted by the
Committee of Ministers of the Council of Europe on 29 June 1967 (Resoluton (67) 14:
Asylum to persons in danger of persecution).
46. The International Court of Justice has had to concern itself with the various aspects
of diplomatic asylum in the Haya de la Torre case.
47. See in particular Baouya I). Federal Republic of Germany, Amekrane II. United
Kingdom, Dolaxyi v. Belgium, Becker ~3. Denmark, etc.
48. In one case, it is expressly prohibited to deprive anyone of their freedom by Art. 11
of the Covenant: No one shall be imprisoned merely on the ground of inability to fulfil1 a
contractual obligation (Cf. Art. 1 Protocol No. 4 to the ECHR and Art. 7.7 ACHR).
49. Cf. Art. 9 UD: No one shall be subjected to arbitrary arrest, detention or exile.
50. Cf. Art. 7.2 and 3 ACHR, which, on the one hand, adopts the method of the
Covenant.
51. Art. 9.2-5 Covenant, Art. 5.2-5 ECHR, Art. 7.4-6 ACHR.
52. Remand in custody is the period of time between the moment of arrest and that at
which the person concerned is brought before a judge or other officer authorized by law to
exercise judicial power. According to the Covenant, the accused should be tried without
undue delay; under the European Convention, a period of four (and even five) days has
been deemed acceptable (Application No. 2894166).
53. Preventive or provisional detention is the period of time between the moment of
arrest and that at which the person concerned has been tried. According to the European
Convention, the period of time should be reasonable. Obviously what is involved is a
notion which should be interpreted according to the facts of each case (cf. in the framework
of the European Convention on Human Rights the cases NezLmeister, Sttiggmiiller,
Matznetter, Ringeisen, etc.).
54. Art. 10 Covenant, Art. 5.4-6 ACHR. No provision of this kind exists in the
European Convention on Human Rights. However, problems concerning the treatment of
prisoners are brought before the European Commission and Court of Human Rights on the
basis of prohibition against inhuman and degrading treatment (see, for instance, the
Simon-Herald v. Austria and Knechtl v. United Kingdom cases, as well as the applications
of the protagonists of the Red Army Fraction v. Federal Republic of Germany: Meinhof,
Baader, Meins, Grundmann, Berberich and Mahler.
55. The United Nations Standard Minimum rules were revised in order for them to be
adapted to the requirements of the current penal policy of the Member States of the Council
of Europe by Resolution (73) 5 of the Committee of Ministers of 19 January 1973.
56. Art. 8 UD, Art. 2.3 Covenant, Art. 13 ECHR, Art. 25 ACHR.
57. This question is of interest in regard particularly to the right to respect for privacy
which can be violated above all by private persons. See Vie privee et droits de lhomme,
Brussels, 1973 and in particular the report of J. De Meyer, p. 363 et seq., which refers the
reader to other work on the Drittwirkung in the teachings.
58. Cf. Art. 10 UD, Art. 6.1 ECHR, Art. 8.1 ACHR.
59. It is consequently necessary first of all for the person concerned to have access to
the tribunal: what is therefore involved is no less than a right to the tribunal (cf. the ruling
delivered by the European Court of Human Rights in the Golder v. United Kingdom case).
60. The question arises for members of the national administration, the police, the
armed forces, etc. With regard to the armed forces, see the judgment of the European
Court of Human Rights in the case Engels and others v. the Netherlands.
61. Although this question was raised before the European Commission on Human
Rights practically as early as 1955, it has not yet been settled once and for all. See, among
the very large number of cases, the judgment of the European Court of Human Rights in
the case Ringeisen v. Austria and the case Konig v. Federal Republic of Germany still
pending.
62. Art. 11 UD; Art. 14.2-7 and Art. 15 Covenant; Art. 6.2-3 and Art. 7 ECHR; Art.
8.2-5 and Art. 9 and 10 ACHR.
63. See also Art. 7 ECHR and Art. 9 ACHR (the latter, however, does contain the
interpretative provision concerning the Nuremberg Law).
64. The qualifying expression without undue delay is obviously very vague and its
interpretation depends on the facts of each case. Under the terms of the European
Convention on Human Rights, the person concerned shall be tried within a reasonable
time, a notion which is no more precise (see the cases Soltikow, Huber, etc.).
65. Cf. Rebitzer v. Austria, a friendly settlement of which was reached between the
parties before the European Commission of Human Rights, where what was involved was
an unjustified detention of more than nineteen years.
67. See UN dot. AXONF.94135; and Chapter 10 infra.
68. Art. 12 UD, Art. 23 and Art. 17 Covenant, Art. ECHR, Art. 17 ACHR.
69. Such at all events is the jurisprudence of the European Commission of Human
Rights: see H. Danelius, A Survey of the Jurisprudence concerning the Right Protected by
the European Convention on Human Rights, RDH-HRJ, Vol. VIII (1975),pp. 431-473, at
p. 452.
70. Cf. East African Asians v. United Kingdom, examined by the Committee of
Ministers of the Council of Europe in 1977.
71. Cf. Allam and Khan v. United Kingdom, a friendly settlement of which was
reached by the European Commission of Human Rights.
72. Art. 24 Covenant, Art. 17.4 and 5, Art. 18 and 19 ACHR; no similar provision exists
in the European Convention on Human Rights.
73. See UN dots. EiCN.411324 and Adds. (1980).
75. In the Eiriksson v. Iceland case the question to be settled was whether the prohibi-
tion against having dogs in Reykjavik was not contrary to the right to respect for privacy: in
its decision of 18 May 1976the European Commission of Human Rights replied in the negative.
76. See the series of reports by the Secretary-General on human rights and scientific
and technological developments, noted in the Bibliography infra.
78. See the case Klass and others v. Federal Republic of Germany, pending before the
European Commission of Human Rights, which concerns the conditions under which the
German Law of 3 August 1968 organized the clandestine control of correspondence and
telecommunications.
79. Art. 18 UD, Art. 18 Covenant, Art. 9 ECHR, Art. 12 ACHR. See also IL0
Convention No. 111 on Discrimination (Employment and Occupation), 1958.
80. See Chapter 10 infra.
81. See for instancethe Grandath v. Federal Republic of Germany case, concerning a
Jehovahs witness, before the European Commission of Human Rights.
82. Art. 18.4 Covenant, Art. 2 Protocol No. 1 to the ECHR, Art. 12.4 ACHR.
83. In the case of the European Convention, the freedom of parents goes beyond the
religious and moral education of their children in that it relates to education and
teaching in general. See the Linguistic cases against Belgium (concerning the freedom of
parents to give education to their children in the mother tongue), the cases Karnell and
Hardtv. Sweden (concerning the religious education dispenses by the Lutheran Evangelical
Church of Sweden), and the cases Kjeldsen, Madsen and Pedersen U. Denmark (concerning
compulsory sex education in State schools).
84. Art. 19 UD, Art. 19 Covenant, Art. 10 ECHR, Art. 13 ACHR. See also IL0
Convention No. 111 on Discrimination (Employment and Occupation), 1958.
85. See Many Voices, One World: Communication and Society, Today and Tomorrow
(Report of the MacBride Commission), Paris/London/New York, Kagan PageiUnipubl
Unesco, 1980, pp. 172-174; and Final Report of a Colloquium on the New Human Rights:
The Rights of Solidarity, Unesco dot. SS-80iCONF.806112 (1980).
86. This is the only provision in the Covenant which includes a reference to the duties
and responsibilities of those who exercise their human rights. But, as is stipulated in the
Universal Declaration of Human Rights in its Article 29.1, everyone has duties towards
the community in which alone the free and full development of his personality is possible.
The problem of duties and responsibilities in relation to freedom of the press is of
particular concern to journalists. See the Report of the MacBride Commission, supra note
85, pp. 233-240.
87. A similar provision is contained in the American Convention (Art. 13.5) but not in
the European Convention: moreover, several Contracting Parties to the European
Convention, as well as other States, have expressed reservations concerning Art. 20 of the
Covenant, considering its provision to be too broad and consequently to present dangers in
respect of freedom of expression.
88. As regards racial hatred, the reader is also referred to Art. 4 of the International
Convention on the Elimination of All Forms of Racial Discrimination which contains much
more precise provisions and undertakings.
89. See K. Vasak, Les conseils de presse, RDH-HRJ, Vol. VII (1974), p. 617 et seq.,
and J. ClementJones, Notes on Existing Press Councils, RDH-HRJ, Vol. VII (1974), p.
624.
91. The Greek Case, report of the Commission, Vol. 1, Part I, pp. 207-208.
93. The American Convention on Human Rights goes further in the matter of
restrictions in that exercise of the right of association by members of the armed forces and
the police may be purely and simply forbidden to them. As for the European Convention, it
confines itself to restrictions alone, but these may also be imposed on members of the
administration of the State, as is provided for also by Art. 8.2 of the Covenant on Economic,
Social and Cultural Rights. See also, in regard to members of the armed forces, the police
and the administration of the State, IL0 Conventions Nos. 87 and 151, the European Social
Charter (Art. 15) and the Covenant on Economic, Social and Cultural Rights. The least that
can be said is that the solutions adopted are far from being the same.
94. The same duality is to be found in the European Convention on Human Rights (Art.
11) and in the European Social Charter (Art. 5).
96. See Freedom of Association, Digest of decisions of the Freedom of Association
Committee of the Governing Body of the ILO, and the studies by N. Valticos listed in the
bibliography, infra, Chapter 12.
97. Art. 21 UD, Art. 25 Covenant, Art. 23 ACHR. Article 3 of Protocol No. 1 to the
ECHR contains a simple undertaking by States to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature. However, the European Commission
of Human Rights has recently interpreted this undertaking in such a way as to grant the
individual the right to vote and to stand as candidate (Applications 6745174and 6746174v.
Belgium).
98. The Universal Declaration of Human Rights also proclaims the right to intellectual
property in its Art. 27.2: Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic production of which he is
the author. It is in this sense that Conventions protecting copyright can be included in
international human rights legislation.
99. See Human Rights-UN Compilation, (1978) p. 21.
100. A study on The New International Economic Order and the Promotion of Human
Rights is being prepared by a Special Rapporteur of the Sub-Commission on Human
Rights. See Sub-Commission res. 8 (XxX11) of 1979.
101. See infra, Chapter 8.
102. A general clause of this kind is included in the Universal Declaration of Human
Rights: Article 29.2.
103. These are the grounds,; more or less numerous, on which restrictions may be
allowed and which vary from one right to another.
104. Art. 18 ECHR, Art. 30 ACHR.
105. Art. 5.2 Covenant, Art. 60 ECHR, Art. 29b ACHR.
106. Art. 64 ECHR, Art. 75 ACHR.
107. See the list of reservations and declarations, registered by States Parties to the
Covenant in UN doe. STILEGISER. D/13 (1980) (Sales No. E.80.V.10) pp. 112-120.
108. Art. 17 ECHR, Art. 29a ACHR.
109. See supra, n.57.
110. P. Modinos, Message to the Teheran Conference, B(68)28, 18 April 1968.
111. J. Fawcett, The right to live and be free, in F. Vallat (Ed.), An introduction to the
study of human rights (1970), p. 72.
112. L. Gostin, Freedom of expression and the mentally disordered: philosophical and
constitutional perspectives, 50 Notre Dame Lawyer, 419, 446 (1975) (judicial attention has
thus far focused on the statutory aspects); see Becker v. Denmark, C(75)17, 23 May 1975
(United Nations Convention relating to Refugees or Art. 4 of the Protocol to the European
Convention of Human Rights).
113. How do we identify legal instruments that may protect civilians in time of armed
conflict? Too many military personnel and government officials consider that the basic
document is the Fourth Geneva Convention. That is too narrow a view. Civilians are also
protected by the UN Charter, the International Bill of Human Rights, the Nuremberg
Doctrine of Crimes against Humanity, the Hague Conventions, the regional conventions,
etc. See Annex I (General Norms concerning respect for human rights in their
applicability to armed conflicts), A/8052, 18 September 1970; S. MaeBride, Human rights
in armed conflicts: the inter-relationship between the humanitarian laws and the laws of
human rights, 9, Revue de droit p&al militaire et de droit de la guerre, 373 (1970; Legal
position under international penal law (of events in East Pakistan)), ICJ Rev., no. 8 (June
1972). p. 26. Other references may be found in chapters 8 and 14 infra. The international
treaties on the protection of human rights in which the Member States have co-operated or
to which they have adhered can also supply indications which may be taken into account
within the framework of community law. See M. Zuleeg, Fundamental rights and the law
of European communities, S, C.M.L.R., 446 (1971); J. Fawcett, The Council of Europe
and Integration, 1974, Int. Affairs, 242, 250 (would there be overlaps between. .(the
Luxembourg) Court and the Commission, and Court of Human Rights in Strasbourg?); G.
Draper, Civilians and the NATO Status of Forces Agreement (1966) (relationship of Art.
VII of the NATO Agreement to the European Convention of Human Rights).
114. K. Grzybowski, Book Review, 68 AJIL 152 (1974).
115. M. Cappelletti, Fundamental guarantees of the parties in civil proceedings (general
report), Fundamental guarantees of the parties in civil litigation (1973), p. 661, 685.
116. To sharpen the comparison, several words have been rearranged but not changed.
117. See F.C. Newman, Natural Justice, Due Process and ?ne New International
Covenants on Human Rights: Prospectus, 1967 Public Law, 274, 279; cf. Fasla opinion (on
review from UN Administrative Tribunal) 1973, ICJ Rep. 166, Summary in 68 AJIL 340,
348 (1974) (officials right to a fair hearing).
118. Attitudes toward the UN Standard Minimum Rules for the Treatment of Prisoners
illustrate the problem we have been examining. Officials often assume those rules are not
law and, anyway, do not protect prisoners exempted from the rules coverage. However,
one of the main functions of the Rules is to specify the meaning of the words cruel, inhuman
or degrading treatment, which appear in the International Bill of Human Rights. For a
jurist who works only with the Standard Minimum Rules the applicability of five Human
Rights words would not be obvious. But often they carry more weight.
Some classifications are misleading. See, for example, Legal Supp.. No. 11 (October 1974)
and also Forward in Europe, Chapter II of which on penal law and criminology contains
references which could well have been included in Chapter 1 on legal provisions relating to
human rights.
119. Advisory opinion on the continued presence of South Africa in Namibia (Southwest
Africa), ICJ Rep., 16 (1971).
120. EiCN.411010 (1969), p. 6; EICN.4/Sub.2/L.583, 25 June 1973, p. 36 (The relation
between genocide and. crimes against humanity).
121. AIC.3ISR.1803, p. 10 (States are bound only by those international instruments to
which they are parties); see also AC.3ISR.1799, p. 3; dAmato, Gould and Woods, War
Crimes and Vietnam 57 Cal. L.R. 1055, 1058, n. 15: Whether the multilateral
conventions generate rules of customary international law or whether they exist in parallel
with customary rules to the same effect, the Nuremberg Tribunal held that provisions in the
Hague Conventions of 1907 and the Geneva Conventions of 1929 were applicable to
Germany not directly but because they were regarded as being declaratory of the laws and
customs of war, 1 Trial Major War Grim. 255 (International Military Tribunal, 1947), and
held the Hague Conventions of 1907applicable to World War II despite the formal exclusion
in those conventions of wars which involved non-parties (Russia was not a party). See also
idem., p. 334 (applicable to Czechoslovakia though it was not a party). Even more
remarkable was the extensive use of the 1929 Geneva Convention on Prisoners of War, to
which Germany itself was not a party; see United States v. von Leeb, 11 Trials of War
Criminals before the Nuremberg Military Tribunals, 462, 535-538 (1950); see also Tanable
Koshiro Case, 11 L. Rep. Trials War Cr-im., 1, 4 (UN War Crimes Commn., 1947)
(applying the Convention to Japan, also a non-party).
8 Principles and Norms of Human
Rights Applicable in Emergency
Situations: Underdevelopment,
Stephen P. Marks
The notion of emergency situations and derogations from fundamental prin-

ciples when public order so requires is common to all legal systems, including
the system of the international protection of human rights.
This chapter concerns the problem of human rights in emergency situa-
tions with reference to three types of such situations, each different from the
other but all sharing certain elements which reduce human rights to their
most precarious level.
Since the situations to be examined are fundamentally different from each
other, it is best to define beforehand what is meant by emergency situa-
tions. Let us first see what the dictionaries have to say.
According to one dictionary an emergency may be defined as a sudden
unexpected happening; an unforeseen occurrence or condition; perplexing
contingency or complication of circumstances; a sudden or unexpected occa-
sion for action; exigency, pressing necessity. Emergency is an unforeseen
combination of circumstances that calls for immediate action. From this deli-
nition two ideas emerge: the situations to be dealt with here are not nor-
mal, ordinary situations, commonly to be met with in the implementation
of human rights. They are consequently preceded or followed by situations
regarded as normal, hence their temporary character. In addition, as the
legal analysis of the consequences that are drawn from such situations shows,
they do not call into question the principles, which remain valid.
Another dictionarya defines emergency as a political term, to describe a
condition approximating to that of war. This brings out even more clearly
what is meant in this chapter by exceptional circumstances: the extreme
emergency situation is that of war and, the closer the emergency situation
considered is to war, the more the difficulties encountered in respect of the
protection of human rights are the same as those prevailing in time of war.
In short, an emergency situation will be understood here as one resulting
from temporary conditions which place institutions of the State in a precari-
ous position and which leads the authorities to feel justified in suspending the
application of certain principles.
176 Stephen P. Marks
So long as the planets resources are not distributed in accordance with

each peoples needs, the most deprived countries will have to contend with
exceptional circumstances of under-development. The leaders of such coun-
tries often consider that the enjoyment of certain human rights is, in such
circumstances, a luxury that their peoples cannot afford until a more or less
long time has elapsed. Under-development thus constitutes the first emer-
gency situation to be examined.
Earthquakes, famines, fires, floods and other natural catastrophes con-
stitute other situations in which certain of the most fundamental rights (the
right to life, the right to an adequate standard of living) may no longer be
ensured by the authorities of a country, who feel it necessary to discontinue
the application of other rights in order to protect the most essential rights.
This is the second emergency situation which will be dealt with here.
Lastly, the third emergency situation is that of internal disturbances and
armed conflicts, the body of law appertaining to which is, as we shall see, by
far the most developed.
1. EMERGENCY ARISING FROM ECONOMIC AND SOCIAL

CONDITIONS AS A WHOLE
Many of our compatriots suffer from per-
manent malnutrition and from all the at-
tendant mental and physical diseases;
their poverty and their ignorance make
all talk of human freedom derisory.
Julius Nyerere
The economic and social conditions of those countries referred to as develop-

ing countries are characterized by poverty, disease, a runaway increase in
population, inequalities and a whole series of factors which are measured
statistically in relation to the so-called developed countries. According to
such criteria as per capita income, there are today over 800 million absolute
poor in the world. The quantitative approach is open to criticism at two
levels, the economic and the semantic: at the economic level because it does
not take into account the differences in kind, and in particular the differences
in structure, between the economically developed countries, the economy of
which usually forms a whole in which all the elements interlock with each
other, and the materially backward countries, the economy of which is dis-
jointed, because it is formed of juxtaposed economies, and dominated, par-
ticularly through trade and as a result of movements in capital; and at the
semantic level because development cannot be understood solely in terms of
economic growth, an increase in productivity, national income, availability of
consumer goods, etc., but must be viewed in the specific context of each
Human Rights Applicable in Emergency Situations 177
society, of each national situation, and encompass the most varied aspects of
social and cultural life4. Thus the economically developed countries are
often under-developed from the point of view of quality of life, measured in
terms of participation by all social groups in the active life of the nation and
the effort to bring about full development of each human being, and the
equilibrium between man and his natural environment. Thus understood,
development calls for changes, both in the materially backward countries
and in the economically advanced countries. The Executive Board of Unesco,
in 1969, clearly and eloquently expressed mans role in development and the
link the latter has with human rights in the following terms:
Development is meaningful only if man, who is both its instrument and beneficiary, is also
its justification and end. It must be integrated and harmonized: in other words it must
permit the full development of the human being on the spiritual, moral and material level,
thus ensuring the rights of man in society, through respect for the Universal Declaration of
Human Rights.
More recently, Unesco, in the introduction to the chapter in its Medium-

Term Plan devoted to Man as the Centre of Development, explained the
links between peace, human rights and development in the following way:
Conditions will be favourable to development only if there is a general climate of peace

conducive to the mobilization of all available resources for the achievement of economic
growth and social well-being, and if the dignity of the individual and his place and role
within the community are given due recognition by the full observance of human rights. But
the converse is equally true: the promotion of human rights and the reinforcement of peace
are inconceivable without an improvement in the material living conditions of the population
at large, which can only be achieved by development. The necessary implication is, not
perhaps that all men must immediately be able to enjoy the fruits of development and of
effective equality of circumstances and of opportunity, but at least that a movement to
improve the lot of all must be launched, that the most obvious ills must be remedied, that
efforts must be made to improve living conditions in accordance with the requirements of
justice, that peoples must have a share in decisions concerning the paths to be followed in
their development and must themselves work for it, and that new horizons with tangible
prospects of improvement must be opened up for them.
It is important to reflect seriously on the meaning of development which is

more than a question of economic parameters-in order to understand the
problems of human rights in the developing countries. Under-development,
understood holistically, is of course the result of the internal structures of the
countries concerned, but also and above all of the structural relations be-
tween the developed countries of the centre (North) and the under-developed
countries of the periphery (South). Under-development consequently has
historical and structural causes which must be understood before a judgment
can be made of the state of human rights in those countries. The state of
these rights is necessarily bound up with the structures and mechanisms
involved in the exploitation of resources, the domestic and international mar-
ket, and political and military alliances at the world level. In any case, most
developing countries and particularly the poorest among them do not exer-
cise full sovereignty over their resources, do not control the price of the raw
materials that they sell to the industrial countries and even less the price of
the manufactured goods that they have to buy, and their economic infrastruc-
ture has been developed as a result of either direct foreign domination (through
colonialism or occupation) or indirect foreign domination by way, for instance,
of foreign landowners.7 The form of this domination varies in time and in
space but it is always present when one takes a close look at the position of
the developing countries and it is inseparable from the problem of human
rights.
This being so, it is understandable that the self-determination of countries
and peoples and sovereignty over their natural resources should be regarded
as fundamental principles of human rights, set forth in Article 1 of the two
United Nations Covenants and analyzed elsewhere in the present work. It
can be said that the elimination of the fundamental causes of under-development
is itself a human right. However, it is not only the elimination of colonialism
and neo-colonialism which constitutes the link between human rights and
development: the right to development has itself been considered as a human
right.g Indeed the existence of this right has been affirmed by the Commis-
sion on Human Rights of the UN, particularly in Resolution 4 (XxX111), 4
and 5 (XXXV) and 6 (XXXVI), and by the General Conference of Unesco,
particularly in Article 3 of the Declaration on Race and Racial Prejudice. The
General Assembly adopted the Commissions position on the existence of this
right in Resolution 34/46 of 7 December 1979.
It is not the purpose of this chapter to analyze the interrelations between
development and human rights, lo nor the right to development as a human
right; but far more modestly to raise the question as to whether and to what
extent under-development, in international human rights law, constitutes an
emergency situation giving rise to the application of special rules relating to
the implementation of human rights?
The basic texts

In Chapter IX of the Charter of the United Nations on international eco-
nomic and social co-operation, the goals of (a) higher standards of living, full
employment and (b) conditions of economic and social progress and develop-
ment are placed before (c) universal respect for, and observance of human
rights and fundamental freedoms among the objectives to be promoted by the
United Nations with a view to the creation of conditions of stability and
well-being which are necessary for peaceful and friendly relations among
nations. Admittedly, Article 55 does not establish a hierarchy between the
three paragraphs (economic and social development, cultural and education
co-operation and respect for human rights), but it seems clear that the first is
at least as important as the other two.
It was indeed on account of Article 55(a) that the drafters of the Universal
Declaration of Human Rights added to the draft Preamble a clause according
to which the peoples of the United Nations have determined to promote
social progress and better standards of life in larger freedom. The view
was not taken, however, that for the purposes of human rights, a distinction
between States according to their level of development belonged in a declara-
tion proclaimed to be a common standard of achievement for all peoples and
all nations and which was to be implemented by progressive measures,
national and international.
Moreover, the Declaration contains, in Article 29 (7), a clause on the limita-
tion to which human rights shall be subject and which must be determined by
law for the purpose of meeting, inter alia, the just requirements of
morality. and the general welfare in a democratic society. l2 During the
discussion on this paragraph, Commission III of the General Assembly seems
to have interpreted the words the general welfare as signifying economic
and social requirements. Although the idea of an emergency situation
arising from social and economic conditions may be considered to originate
with article 29 of the Universal Declaration, the developing countries were
not being referred to specifically.
It was necessary to wait for the International Covenant on Economic,
Social and Cultural Rights of 1966l* for this idea to be clarified, but only as
regards the status of aliens. Thus, Article 2, paragraph 3, of the Covenant
reads: Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would guarantee the
economic rights recognized in the present Covenant to non-nationals.
The place given to this idea, and to the rights to self-determination and to
sovereignty over natural resources in the Covenant, reflects the shift in the
power base of the countries involved between 1948 (the Declaration) and 1966
(the Covenants). This evolution was subsequently to become far more rapid
and the notion of an emergency situation in the sense understood in this
chapter was quickly to emerge.
On the occasion of the International Conference on Human Rights, con-
vened by the General Assembly to mark the twentieth anniversary of the
Universal Declaration of Human Rights15 and held in Teheran from 22 April
to 13 May 1968, a special study on Some Economic Foundations of Human
Rights was prepared by Mr. Jose Figueres. l6 On the basis of this study, the
Conference adopted Resolution XVII entitled Economic development and
human rights which includes the following paragraphs:
The International Conference on Human Rights,

Believing that the enjoyment of economic and social rights is inherently linked with any
meaningful enjoyment of civil and political rights and that there is a profound inter-connection
between the realization of human rights and economic development,
Noting that the vast majority of mankind continues to live in poverty, suffer from squalor,
disease and illiteracy and thus leads a sub-human existence, constituting in itself a denial of
human dignity,
Noting with deep concern the ever-widening gap between the standards of living in the
economically developed and developing countries,
Recognizing that universal enjoyment of human rights and fundamental freedoms would
remain a pious hope unless the international community succeeds in narrowing this gap,
Considering the close relationship between the terms of international trade and other
economic, fiscal and monetary measures, national or international, on the one hand, and the
possibility of narrowing this gap by rapid economic development, on the other,
The central idea of this resolution is taken up again in the Proclamation of

Teheran, adopted at the closure of the Conference, which stipulates in oper-
ative paragraphs 12 and 13:
12. The widening gap between the economically developed and developing countries im-
pedes the realization of human rights in the international community.
13. Since human rights and fundamental freedoms are indivisible, the full realization of civil
and political rights without the enjoyment of economic, social and cultural rights, is impos-
sible. The achievement of lasting progress in the implementation of human rights is depen-
dent upon sound and effective national and international policies of economic and social
development.
The inherent correlation between the enjoyment of human rights and

economic development referred to in Resolution XVII and the obstacle con-
stituted by the gap between economically developed and under-developed
countries is now at the centre of the reflections on the implementation of
human rights at the United Nations and elsewhere. l7 The implications of the
argument that under-development constitutes an emergency situation con-
cern not only civil and political rights-but also economic, social and cultural
rights-for the enjoyment of the former are not possible without that of the
latter. Indeed, after considering a study on economic and social rights,s the
Economic and Social Council affirmed its conviction that early realization of
economic, social and cultural rights can be achieved only if all countries and
peoples are able to attain an adequate level of economic growth and social
development and if all countries institute all necessary measures with a view
to eliminating inequality in income distribution and social services in accor-
dance with the International Development Strategy for the Second United
Nations Development Decade. l9
Although the text relating to the International Development Strategy
indicates with a certain precision the goals and objectives pursued together
with measures calculated to create in the world a more just and more ratio-
nal economic and social order, it was soon superseded by decisions which go
a great deal further in attempting to identify the causes of, and solutions to,
under-development in the world and which tell us more about the links be-
tween development and the protection of human rights.
The most far reaching event in this regard was the Sixth Special Session of
the United Nations General Assembly, which adopted the Declaration and
Programme of Action on the establishment of a new international economic
order (3202 (S-VI)). As regards the causes of under-development, the Decla-
ration unhesitatingly states that the remaining vestiges of alien and colonial
domination, foreign occupation, racial discrimination, apartheid and neo-
colonialism in all its forms continue to be among the greatest obstacles to the
full emancipation and progress of the developing countries and all the peo-
ples involved. It recalls that the present system was established at a time
when most of the developing countries did not even exist as independent
States and is therefore in direct conflict with the current developments in
international political and economic relations. From the relation of interde-
pendence existing among all the members of the world community, it draws
the conclusion that the prosperity of all depends on that of the constituent
elements and that it is consequently necessary to put an end to the imbalance
existing between developed countries and under-developed countries. Fur-
ther to these decisions, and in conformity with Section VI of the Programme
of Action, the General Assembly adopted, at is 29th session, the Charter of
the Economic Rights and Duties ofStatePzl as the first step in the codifica-
tion and developments of the matter. The Charter begins by reaffirming the
fundamentals of international economic relations which consists of fifteen
principles including respect for human rights and fundamental freedoms.
However, there is no mention of human rights as such either in the Declara-
tion, or in the Programme of Action, or elsewhere in the Charter. Be that as
it may, from the standpoint of the implementation of human rights, the
provisions of these texts do identify some of the structural changes to be
made before the Third World countries and the developed countries can be
considered equals. It is indicative of the increasing tendency to link respect
for human rights to the establishment of a new international economic order
that the Commission on Human Rights decided to expand its traditional
agenda item on realization of economic, social and cultural rights and special
problems of developing countries to include:
the effects of the existing unjust international economic order on the economies of the
developing countries, and the obstacle that this represents for the implementation of human
rights and fundamental freedoms.
Two other post-1974 statements of the development-human rights

probl8matique deserve mention: in defining the concepts which should guide
future human rights work in the UN system, the General Assembly, in 1977,
affirmed, inter alia:
1 (b)The full realization of civil and political rights without the enjoyment of economic,
social and cultural rights is impossible; the achievement of lasting progress in the imple-
mentation of human rights is dependent upon sound and effective national and international
policies of economic and social development?
Whatever view one may have on the claims put forward by Third World
countries-and they have been criticized either for going too far and endan-
gering development prospects for all or for being oriented towards the elites
and neglecting the real development problems of the dominated masses-the
fact remains that, for these countries, until a new international economic
order is achieved, the economic and social conditions of under-development
will constitute an emergency situation making the implementation of at least
some human rights difficult, if not impossible.
Even in this case, however, the principle of the enjoyment of all human
rights remains unchallenged;24 only the exercise of certain rights may not be
fully ensured, or may even be discontinued so long as the emergency situa-
tion lasts.
The reality of under-development and the implementation of certain

human rights
While slavery has been practically eliminated since the anti-slavery move-
ment of the 19th century and is prohibited by legislative provisions estab-
lished in the 20th century, cases of its persistence have been pointed out,
particularly in the developing countries. The practice of slavery in its classic
form has been attributed to the consequences of economic and social condi-
tions, such as nomadism and a very low level of national income which does
not make it possible to pay for the services provided by the slave.25 Consider-
ing the large number of developing countries which have ratified the Slavery
Convention and the Supplementary Convention on the Abolition of Slavery,26
it can be said that the developing countries recognize the absolute character
of the prohibition against slavery, for, despite the difficulties encountered in
the attempt to eliminate it completely in the world, under-development can-
not be considered to be a justification or an excuse for the condition of
slavery.
The same is true for torture and cruel, inhuman or degrading treatment.
Even though one of the explanations given for the persistence of torture is
that the developing countries do not have the means to provide adequate
training for the police and to obtain the desired information in any other way,
the obligation to abolish torture and similar practices is incumbent on all
States, regardless of their level of development.27
The prohibition of genocide is a third example of a human right which no
country feels justified in violating. 28The most recent cases of this crime have,
however, occurred in developing countries.2g
As regards the right to a fair trial, the independence of the judiciary, the
rights to defence, the adversary character of the procedure, and the making
public of the proceedings, all these elements seem to be regarded as funda-
mental guarantees which do not depend on the state of development. Im-
proving the administration of justice and the use of legal aid on a large scale,
however, require means which are not available to many countries, but the
most elementary principles of justice are recognized to be binding upon all
countries without exception.
The right to free choice of employment, recognized by Article 23 of the
Universal Declaration offers a more difficult example. The participants in the
United Nations seminar held in Dakar in 1966 held the view that the eco-
nomic and social situation of Africa did not make it possible, for the time
being, to implement that right, for the need to protect the population against
unemployment sometimes made it necessary for a certain amount of control
to be exercised in respect of choice of employment. Constraint in this re-
gard may take several forms: compulsory civilian service for the unemployed,
the obligation to perform work useful to the community, the obligation to
work land in conformity with a development plan, guidance at the level of
training, etc. Sometimes it will be difficult to distinguish between restric-
tions on free choice of employment in order to meet the needs of develop-
ment, and forced labour, prohibited by the IL0 Conventions. Like all
exceptions in the matter of human rights, this particular one may be compat-
ible with human rights only insofar as it is in the general interest, effectively
required by the situation and proportionate to the needs involved.
It has often been observed that the right to private property has undergone
a negative evolution since the Universal Declaration. Its very existence was
challenged at the time that Article 17 of the Declaration was being drawn
up. B While the restrictions on this right may be related to under-development,
the right itself has been called into question by the developing countries,4
some of which pointed out that this right may impede development.5 In any
case, the right to property is not included in the 1966 Covenants and is
subject to an important limitation founded on the general interest in the
European36 and American37 regional conventions.
Far more difficult is the question offreedom of expression and of the press.
While the right to seek, receive and impart information has given rise to
complex problems in the developed countries, its implementation meets with
different and more considerable problems in the developing countries. The
consequences of unlimited freedom in this field can indeed be easily imagined
for a country that has very small resources at its disposal for a national press,
for television and radio programmes, for the training of journalists and media
technicians, etc. Such a State is at the mercy of those who possess such
resources, that is to say, of a class of society which does not represent the
mases, or of foreign interests. It is then generally recognized that a balance
must be established between the maintenance of national solidarity and unity,
on the one hand, and the right of everyone to express himself or herself freely
and to receive information, on the other. s Considering the precarious situa-
tion of certain newly independent States, it is not surprising that they re-
strict freedom of information more than in the developed countries. Moreover,
information plays an essential role in the education and mobilization of the
people and consequently in the development process. It may then seem a

necessity for the State to hold a monopoly. But such a situation may also lead
to arbitrariness or may prevent the masses from learning the truth about
facts which concern them.
In contrast with the developed countries, the problem of information arises
in the developing countries both at the level of the technical facilities (print-
ing presses, radio and television broadcasting stations, film studios and cin-
emas, press agencies, etc.) and at the level of political structures and attitudes
(existence or not of an opposition party, level of political awareness of the
masses, etc.). In most cases, no private group commands the necessary capi-
tal, unless it is foreign or financed from abroad, to found information enter-
prises. A certain degree of government intervention to make the media more
independent of such foreign interests may, in the view of the countries con-
cerned, be necessary. As a communication network becomes established, and
as political stability becomes assured, the restrictions to which the exercise
of freedom of information is subject lose their justification and greater free-
dom is required.
The last example to be examined is that of freedom of association. The
political reasons invoked in regard to freedom of information also hold for
political association, insofar as the existence of a single party is considered by
several newly independent countries to be essential for development. Thus,
for instance, the African countries need to be able to rely on national unity in
order to reap the fruits of development in the face of colonial concupiscence
and the special interests of tribes or other groups.
Any exception to the principle of freedom of political association, justified
by the specific conditions of the developing countries, must however be com-
patible with each person's right to take part in the conduct of public affairs in
his or her country, to choose his or her representatives or be elected in
genuine periodic elections by universal suffrage and by secret ballot. The
right to take part in political life must be the object of special attention in a
single-party system in order for the party to become and to remain the
expression of the will of the governed. 4o If the party becomes the tool of a
dominant minority which seeks to stay in power by means of bogus elections,
then the development of the entire country suffers. In such cases, the only
remedy seems to lie in clandestine action and in the use of violence by the
opposition. Here as elsewhere in this chapter, the dialectic expressed by the
third preambular paragraph of the Universal Declaration comes into play:
. it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should
be protected by the rule of law.
Misuse of under-development as a pretext for abusive limitations on human
rights
For one of the most outstanding African jurists and former President of
the UN Commission on Human Rights, all these developing States, con-
stantly threatened by disorder and economic difficulties, consider themselves

to be permanently in an emergency situation .42 In his view, what is involved
is not so much justifying exceptions to the exercise of certain human rights on
account of the conditions of under-development, but rather issuing a warning
against the abuses which may result from using a limited emergency situa-
tion as an excuse which is perpetually invoked. One must not wait for
under-development to be throttled once and for all (if ever it can be) in order
subsequently to attempt to observe the rules governing human rights and
freedoms.43
In requesting the study on the question of the duties of the individual and
the limitations to the exercise of human rights, the Sub-Commission on Preven-
tion of Discrimination and Protection of Minorities stated that limitations
imposed on the exercise of human rights should not serve to justify an abuse
which would lead to violations of human rights.44 The rules of interpretation
generally applied to clauses of exception4 should, moreover, prevent certain
abuses of the notion of emergency arising from the state of under-development.
First of all, certain rights are to be respected at all times and in all places.
Secondly, the restrictions must be provided by law46 and applied solely for
the purpose for which they have been provided and, above all, should not
serve as a pretext for political repression. Lastly, they should not give rise to
any discrimination on grounds of race, sex, colour, language, religion or
social condition. The specific character of the emergency situation arising
from under-development makes it possible to consider as inadmissible in
international human rights law any emergency measure taken to protect the
privileges of an elite or a dominant minority and which does not contribute to
the economic liberation of the entire population.
The full exercise of all human rights must of course be guaranteed as soon
as social and economic conditions permit. But how, in the absence of reliable
indicators and competent bodies, can one judge whether these conditions
have been met or the emergency situation ended? What steps can be taken to
prevent those practices which have become customary during the emer-
gency situation from continuing indefinitely, without even the rulers and the
governed realizing it? The application of the notion of emergency to condi-
tions of under-development must therefore be handled with utmost care. The
struggle for liberation against colonialism and neo-colonialism and for devel-
opment in the interest of the populations of the under-developed countries is
also the struggle for human rights. If the exercise of certain rights is discon-
tinued on account of that struggle, considered as an emergency situation,
which, by definition, is temporary, then the measures must also be tempo-
rary and they do not in any case derogate from the principle, which remains
valid, of universal respect for, and observance of, human rights, based on the
UN Charter.
This difficulty of determining the duration of the emergency situation in
the case of under-development does not arise in the situation arising from
.force majeure.
2. EMERGENCY ARISING FROM FORCE MAJEURE: NATURAL

CATASTROPHES
When something is described as a nat-
ural disaster, it is in most cases merely
because its causes or workings cannot
be discerned nor a remedy found.
Amadou-Mahtar MBow
Impact of catastrophes on human rights in general
The emergency situation which arises on the occasion of natural catastro-

phes47 generally, but not necessarily, begins the moment that the event takes
place. Insofar as the catastrophe has been foreseen-and it is the role of the
Red Cross and of the United Nations Disaster Relief Co-ordinator to assist
States in anticipating and planning relief4-it is for the government of the
country affected to take the necessary measures to reduce in advance the
effects of the event in the interests of the entire population.
Over and above the measures relating to the planning of relief which do not
affect the exercise of human rights (appointment of a single co-ordinator,
training of administrative and medical personnel, storage of tents, blankets,
foodstuffs, etc.), it may conceivably be necessary to impose, prior to the
disaster, certain restrictions on freedom of movement and residence (forced
evacuations from areas in danger of being affected), the freedom of the press
and other information media (the need to inform the population of what
should be done and to avoid panic) 4g, freedom of employment (use of the
labour force to build shelters, dykes, etc.), the right to property (requisi-
tions) and other rights which may be subject to the strictly necessary limita-
tions for the purpose, under the terms of the international instruments, of
meeting the just requirements of the general welfare (Art. 29 of the Univer-
sal Declaration) or for the protection of national security, public order or
public health (inter alia, Arts. 19 and 21 of the Covenant on Civil and Politi-
cal Rights).
In the few texts currently in force which expressly provide for exceptions
in cases offorce majeure, in particular certain IL0 Conventions, the period
of emergency includes the threat of danger, that is to say, the period before
the event. A provision concerning exceptions in eases of war or emergency is
included in at least eight international labour conventions. Taking the Con-
vention (No. 29) on Forced Labour, 1930, as an example, the obligations it
contains do not apply to any work or service exacted in cases of emergency,
that is to say, in the event of war or of a calamity or threatened calamity, such
as fire, flood, famine, earthquake, violent epidemic or epizootic diseases,
invasion by animal, insect or vegetable pests, and in general, any circum-
stances that would endanger the existence or the well-being of the whole or
part of the population.51 In addition to containing an excellent definition of

emergency situations this paragraph illustrates the possibility of taking into
account, in a legal text, the period which precedes the calamity (threatened
calamity, any circumstance that would endanger). The IL0 Committee of
Experts on the Application of Conventions and Recommendations specifies in
this connection that the length and extent of compulsory service, as well as
the purposes for which it is used, should be strictly limited in accordance with
the requirements of the situation and it compares this stipulation with that
of Article 4 of the International Covenant on Civil and Political Rights.52
This being said for the period before the natural catastrophe, we shall now
analyse the derogation clauses of human rights instruments which may apply
after the outbreak of such catastrophes to other emergency situations.
Derogation clauses
The derogation clause is contained essentially in Article 4 of the Covenant

on Civil and Political Rights, Article 15 of the European Convention and
Article 27 of the American Convention. These three texts do not, however,
allow derogations to be made from the right to life, from the prohibition
against torture and inhuman or degrading treatment or punishment, from
the prohibition against slavery and from the principle of the lawfulness and
non-retroactivity of penal laws. The list of these rights is reproduced in Table
I. In addition, the authorized derogations must not be inconsistent with other
obligations under international law, must be strictly required by the exigen-
cies of the situation and be notified to the competent body.
It will be the competent bodys task to assess whether the public emer-
gency invoked following the natural catastrophe justifies the application of
the derogation clause. Case-law in this field, in particular that of the Euro-
pean Commission and Court of Human Rights, relates to situations of con-
flict, and the case of a natural catastrophe has not yet arisen. The IL0
Committee of Experts on the Application of Conventions and Recommenda-
tions has had occasion to express its opinion concerning a situation involving
a natural catastrophe, namely the Nicaragua earthquake:
The Committee has taken cognizance, with deep regret, of the earthquake suffered by the
city of Managua and of the magnitude of this national catastrophe. In extending to the
government of Nicaragua its profound sympathy and expressing its sincerest wishes for a
rapid return to normalcy, the Committee, fully conscious of the seriousness of the situation
in the country and the difficulties arising for the normal fulfilment of its international
obligations, has considered it necessary to suspend the examination of the questions relat-
ing to the application of ratified Conventions by this country. The Committee hopes that the
Government will be in a position in due course and with the help of the IL0 to give full effect
to its obligations under the conventions ratified by Nicaragua.
In this instance what was involved was a town and consequently only part
of the population. The text of the Convention Concerning Force or Compul-
h
1--_- -.-. -...--._.-..--.---...- . ..~
sory Labour, quoted above, specified, moreover, that the danger may con-
cern the whole or part of the population, which appears normal where
natural catastrophes are concerned. The precedents of the organs of the
European Convention, on the other hand, seems more restrictive, for in the
case Gerard Lawless v. Republic of Zreland,5 the Court defined a public
emergency threatening the life of the nation as an exceptional situation of
crisis or emergency which affects the whole population and constitutes a
threat to the organized life of the community of which the States is com-
posed. True, this precedent relates to situations of conflict and not cases of
natural catastrophes, and the question consequently arises whether the in-
terpretation given of Article 15 by the Commission would be the same in the
event of a natural catastrophe affecting only part of a States territory.
In addition to derogation clauses, the international texts provide for a
number of restrictions, either in the formulation of certain rights or in spe-
cific clauses of exception. The remainder of this section concerns the possible
use of these restrictions in cases of natural catastrophe, but applies, mutatis
mutandis, to situations of conflict which are examined further on.
The articles relating to the right to life (Art. 6 of the Covenant on Civil and
Political Rights, Art. 2 of the European Convention, Art. 4 of the American
Convention) make an exception for the death penalty (and in the sole case of
the European Convention, for death when it results from the use of force
which is no more than absolutely necessary): a) in defence of any person
from unlawful violence; b) in order to effect a lawful arrest or to prevent the
escape of person lawfully detained; c) in action lawfully taken for the purpose
of quelling a riot or insurrection. All these cases justifying deprivation of life
could occur during natural catastrophes.
The prohibition against forced labour (Art. 8 of the Covenant, Art. 4 of the
European Convention, Art. 6 of the American Convention, IL0 Conventions
No. 29 and No. 105) does not cover work required of a person under detention
or any service exacted in cases of emergency or calamity threatening the life
or well-being of the community or any work or service which forms part of
normal civil obligations.7 The attitude of the IL0 Committee of Experts in
regard to the question of forced labour in cases of catastrophe has already
been mentioned. As for the European Commission, it examined this provi-
sion in particular in the Zversen v. Norway case5? this case concerned a
Norwegian dentist assigned against his will to a remote region in the north of
the country, in accordance with a provisional law of 1956. While four of the
six members of the majority of the Commission (which concluded that the
application was not admissible) considered that the work demanded of Iversen
was neither unjust nor oppressive and that the Commission consequently did
not need to judge of the applicability of Art. 4 (3), the two others were
however of the opinion that the service in question constituted a reasonable
service in the case of an emergency threatening the well-being of the commu-
nity within the meaning of that Article.
As regards the right to liberty, the limitations prescribed in the texts (Art.
5 of the European Convention, Art. 7 of the American Convention, Arts. 9
and 10 of the Covenant on Civil and Political Rights) authorize lawful arrests
and detentions in normal circumstances. It is also permitted to detain a
person likely to spread an infectious disease (Art. 5 (1) (e) of the European
Convention), which may prove to be necessary during a natural catastrophe,
particularly during an epidemic.
In general the articles of international human rights treaties which reaf-
firm or proclaim a right contain a second paragraph setting out the limita-
tions which may be invoked and applied in cases of natural catastrophe as
well as other emergency situations.
Like emergencies arising from social and economic conditions as a whole,
those founded on force majeure resulting from a natural catastrophe must be
handled with care. The temptation is great to plead the need to waive inter-
national human rights norms in order to cope with the consequences of a
natural catastrophe. Natural catastrophe, provided that it constitutes a pub-
lic emergency threatening the life of the nation, may be invoked under the
conditions laid down by the international human rights law in order to take
measures derogating from certain human rights but not from all of them.
Similarly, when a natural catastrophe makes it necessary for human rights to
be subjected to certain restrictions, these are limited by the provisions men-
tioned above. In practice, in contrast with the emergency situation founded on
under-development, emergencies arising from natural disasters have not been
the subject of many discussions from a human rights perspective. The reason
for this may be that such emergencies correspond more closely to the situa-
tions provided for in the international instruments and have, for that reason,
greater chance of being controlled by the competent organs.
3. EMERGENCY ARISING FROM THE EXISTENCE OF

INTERNAL DISTURBANCES AND ARMEDCONFLICTS
between the oppressors and the

oppressed everything is settled by
force.
Franz Fanon
The relationship between violence and human rights

While under-development is often regarded as a form of structural vio-
lence, while natural catastrophes are essentially the result of the violence of
nature often aggravated by conditions of under-development, the emergency
situation which is the subject of the third part of this chapter concerns the
direct and open violence of individuals and groups.
Municipal law regulates human conduct under the control of the State
which has a monopoly over the use of force. It is in the logic of this system
that the use of force which is not authorized by the State is regarded as an
aberration in relation to the legal system considered. But the internal legal
system may itself be founded on violations of human rights. Is violence car-
ried out against the authority of the State for the purpose of protecting
human rights recognized in international human rights law? Do limits exist to
the use of violence by the State, limits imposed by international human rights
law? Such are the questions which arise when one examines the relationship
between violence and human rights.
The dialectic between human rights and violence did not escape the drafters
of the Universal Declaration. The third preambular paragraph stipulates
that: it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should
be protected by the rule of law.
The idea, of course, is not new. Without going all the way back to Socrates
Apology5 the following passage from Vattel, writing in the middle of the
18th century, illustrates the tradition of the right of resistance: . as for
those monsters who, bearing the title of sovereigns, make themselves the
bane and horror of mankind, they are wild beasts that all men of feeling justly
want to eliminate from the earth.
While the French Declaration of 1789 and especially that of 1793 as well as
the United States Declaration of Independence establish the right to revolt in
a revolutionary context, the 1948 Universal Declaration is primarily the ex-
pression of a movement to preserve peace for all time. But in an international
order where law is the result of power relations61 peace founded in injus-
tice and violation of human rights cannot last and inevitably leads to violence.%
As defined by international human rights law, human rights include two
dimensions which make it easier to understand their relationship to violence:
oppression is negation, through direct or structural violence, of civil and
political rights; misery is the negation, essentially through structural vio-
lence, of economic, social and cultural rights which results from inequalities
between individuals, groups and States. The institutions for the protection of
human rights which operate in conformity with the provisions of interna-
tional conventions may alleviate certain effects of those structures, but they
are incapable of bringing about by themselves the political changes necessary
for oppression and hardship to disappear. Such changes are very often achieved
by violence, and it is here that lies the central aspect of the relationship
between violence and human rights.
The social sciences, and in particular political science and peace and conflict
research, have developed typologies, models and indicators which distinguish
between the different manifestations of violence.64 To understand violence
from the point of view of the international dimensions of human rights, four
types of situations should be distinguished, namely, international disturbances
and tensions, internal armed conflict, wars of national liberation and interna-
tional wars.
Internal disturbances and tensions
Public order is threatened when individuals or groups commit acts of non-

organized violence, that is to say, violent acts which do not constitute mili-
tary operations conducted in accordance with a concerted plan. Such acts are
usually repressed in accordance with a national penal law; from the point of
view of international human rights law, there are no a priori grounds for
considering such a situation as justifying a derogation from the applicable
rules. Likewise, internal tensions, caused by opposing political forces and not
entailing military operations, do not necessitate the application of emergency
measures.
It is only when internal disturbances constitute a real threat to the life of
the nation that the international instruments provide for the possibility of
derogating from the rules normally applicable. In fact, the problem here is
one of assessment of the solution which depends primarily on the national
authorities and where appropriate, on the case-law of the controlling organ
under international instruments.
In cases of internal disturbances which do not constitute an emergency
situation, certain problems may arise, particularly with respect to mass ar-
rests of persons charged with political offenses. Special international stan-
dards have been drawn up to improve the protection of prisoners, namely,
the Standard Minimum Rules for the Treatment of Prisoners adopted by
the First United Nations Congress on the Prevention of Crime and the
Treatment of Offenders in its Resolution of 30 August 1955. The purpose of
these rules is to set out what is generally accepted as being good principle
and practice in the treatment of prisoners and the management of institu-
tions, without however precluding new methods and practices, provided
that they are consonant with the principles governing the protection of human
dignity. Of these rules, mention should be made of non-discrimination, free-
dom of belief, respect for human dignity and a whole series of standards
concerning the distribution of prisoners, accommodation, hygiene, discipline,
etc.; the right to make requests or complaints to the prison administration is
also recognized; lastly, special rules are prescribed for certain categories of
prisoners and persons under detention. The implementation of these rules
was on the agenda of the Fifth and Sixth United Nations Congresses held
respectively in Geneva in September 1975 and in Caracas in September 198065
and additional standard-setting activities have supplemented them consider-
ably. Among the draft instruments which hopefully will soon be widely ac-
cepted are a Convention on torture and other cruel, inhuman and degrading
treatment or punishment,@j a body of principles for the protection of all
persons under any form of detention of imprisonmenti7 and a set of principles
of medical ethics relevant to the role of health personnel in the protection of

persons against torture and other cruel, inhuman or degrading treatment or
punishment.
Certain provisions of the general human rights instruments assume partic-
ular importance during periods of internal disturbances. These are primarily
the protection of individual freedom against arbitrary arrest and detention,
guarantees of a fair hearing, including the non-retroactivity of criminal laws,
the right to be defended, the prohibition of torture and inhuman or degrading
treatment and punishment, and freedom of association.
Every day cases arise, in every region of the world, illustrating the lack of
respect for these rights in periods of internal disturbances. International
human rights law is now sufficiently developed for it to be possible to con-
sider that the State which fails to respect the human rights provisions appli-
cable to such situations does not fulfil its obligation, assumed under the
Charter of the United Nations, to promote respect for, and observance of,
human rights.
Armed conflicts not of an international ch,aracter
When a conflict assumes the dimensions of an armed confrontation, the life

of the nation is immediately considered to be threatened, with the result that
the derogation clauses are able to be invoked. In such cases, all those human
rights norms from which no derogation is allowed remain applicable.
These norms are confirmed or supplemented by the specific law of non-
international armed conflicts which forms part of humanitarian law, outlined
elsewhere. Although the Universal Declaration did influence the drafters of
the Geneva Conventions,70 the systems of international human rights law and
that of humanitarian law tackle the problem of internal armed conflicts in
different ways. The first falls in the framework ofjzhs ad bellum as envisaged
by the Charter of the United Nations, according to which recourse to force is
prohibited and which is consequently aimed at the preservation of peace. The
second, on the other hand, forms part of jus in hello: it establishes rules
governing the use of force without examining the causes of the conflict in
accordance with the principles of the Red Cross and in particular the princi-
ples of humanity.71
Present-day humanitarian law is not confined to conventional situations of
war; it also provides, in Article 3 common to the four Geneva Conventions of
12 August 1949, for norms applicable to armed conflict not of an interna-
tional character occurring in the territory of one of the High Contracting
Parties.7 According to the commentary on the Geneva Conventions, Article
3 ensures at least the application of humanitarian rules recognized as being
essential by civilized peoples.7 Briefly summarized these are the rules of
non-discrimination corporal well-being (prohibition of murder, mutilation,
cruel or humiliating treatment and torture), personal freedom (prohibition of
Stephen P. Marks
the taking of hostages and of summary executions) and elementary due process.
These rules may have a lesser or greater scope according to whether they
are interpreted, as is recommended in the commentary,74 in the light of other
articles in Conventions concerning human treatment. It is stipulated, in
addition, that the Parties to the conflict should. endeavour to bring into
force, by means of special agreements, all or part of the other provisions of
the present Convention.
Aware both of the difficulties involved in having a common article 3 applied
by the parties to an internal conflict and of the need to extend the list of the
recognized rights, the ICRC examined this problem at meetings of experts
(1953, 1955, 1962 and 1969), International Conferences of the Red Cross
(Istanbul, 1969; Teheran, 1972), a consultation of experts (1970) and confer-
ences of government experts (1971,1972). The United Nations Conference on
Human Rights of 1968 marked a turning point in this connection in that it
recognized the need for additional international humanitarian conventions
or for possible revision of existing Conventions to ensure the better protec-
tion of civilians, prisoners and combatants in all armed conflicts. . It also
requested the Secretary-General, after consultation with the ICRC, to draw
the attention of Member States to the rules existing on the subject.75
It was in this context that the Swiss Federal Government convened the
Diplomatic Conference on the reaffirmation and development of interna-
tional humanitarian law applicable in armed conflicts which met in 1974,
1975, 1976 and 1977. Considerable preparatory work was carried out by the
ICRC on the question of non-international conflicts76. This work culminated
in the drafting of one of the two additional Protocols to the Geneva Conven-
tions dealing specifically with the protection of victims of non-international
armed conflicts.77 The fundamental guarantees are defined in Article 4 of
the Protocol II as follows:
Article 4 (Fundamental guarantees)

1. All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person,
honour and convictions and religious practices. They shall in all circumstances be treated
humanely, without any adverse distinction. It is prohibited to order that there shall be no
survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the
persons referred to in paragraph 1 are and shall remain prohibited at any time and in any
place whatsoever:
(a) violence to the life, health and physical or mental well-being of persons, in particular
murder as well as cruel treatment such as torture, mutilation or any form of corporal
punishment;
(b) collective punishment;
(c) taking of hostages;
(d) acts of terrorism;
(e) outrages upon personal dignity, in particular humiliating and degrading treatment,
rape, enforced prostitution and any form of indecent assault;
(f) slavery and the slave trade in all their forms;
(g) pillage;
(h) threats to commit any of the foregoing acts.
Furthermore, special rules are provided in Article 5 of the Protocol for

persons deprived of liberty, and principles of penal law, in particular the
prohibition of retroactive laws and punishments, the presumption of inno-
cence, the protection against self-incrimination, and the right to be present at
trial with all necessary rights and means of defence are reaffirmed.
Wars of liberation
Although the drafters of the 1949 Geneva Conventions did not lay down
special rules for armed conflicts in which one of the parties claims to be
availing itself of its right to self-determination 78the delegates to the 1974-1977
Diplomatic Conference and the ICRC attached particular importance to this
question, no doubt because the States participating in the Conference were
more numerous and less European in 1974 than in 1949 and several of them
had acquired their independence through wars of liberation. The importance
of this matter was further illustrated by the presence of observers from
liberation movements engaged in combat and the disagreement which arose
in connection with some of these movements.
Closely bound up with the international dimensions of human rights, the
right of peoples to self-determination is in fact enshrined among the purposes
and principles of the United Nations (Articles 1 and 2 of the Charter) and has
been reaffirmed many times in the context of human rights. The first opera-
tive paragraph of the Declaration on the Granting of Independence to Colo-
nial Countries and Peoples stipulates: The subjection of peoples to alien
subjugation, domination and exploitation constitutes a denial of fundamental
human rights. . This right is again reaffirmed in Article 1 of the two 1966
Covenants; it is dealt with in detail in another chapter.7g
The United Nations General Assembly has insisted for several years that
the rules of humanitarian law should apply to combatants in movements
engaged in the struggle of peoples labouring under the yoke of colonial and
foreign domination to secure their liberation and self-determination.
Thus the first phase consisted in granting to combatants in liberation move-
ments the protection provided for war prisoners according to the 3rd Geneva
Convention. The ICRC attempted to do this by proposing to the Diplomatic
Conference that a paragraph worded as follows to Article 42--new category
of prisoners of war-of Draft Protocol I (international armed conflicts) be
added:
3. In cases of armed struggle where peoples exercise their right to self-determination as

guaranteed by the United Nations Charter and the Declaration on Principles of Interna-
tional Law concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations, members of organized liberation movements who
comply with the aforementioned conditions shall be treated as prisoners of war as long as
they are detained.
Doctrine is divided on the questions especially since what is involved is

granting a legal status to wars of liberation by equating them, for the pur-
poses of the application of the Geneva Conventions, with international armed
conflicts. Aware of these divergencies of opinion the ICRC took the view that
draft paragraph 3 of Article 42 of Draft Protocol I quoted above was suff-
cient and that it was not fitting to include a reference to wars of liberation in
the article devoted to the scope of the Protocol. The Committee responsible
for Article 1 (general principles) of Protocol I considered, however, that it
was not sufficient and it adopted the following paragraph:
The situations referred to in the preceding paragraph include armed conflicts in which
peoples are fighting against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination, as enshrined in the Charter of
the United Nations and the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations.H
If the Protocol containing this provision in its Article 1, paragraph 4, is

ratified by a large number of States, there will no longer be any doubt as to
the applicability to wars of liberation of the norms of international law relat-
ing to the protection of victims of international armed conflicts.
International warfare
According to article 2 common to the four Geneva Conventions, all the

provisions of those Conventions shall apply when two or more Contracting
Parties are engaged in an armed conflict, even if the state of war is not
recognised by one of them. They shall also apply to all cases of partial or
total occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.
A summary of these norms is given in another chapters4 and, for a more
thorough examination, reference must be made to the travaux prbparatoires
and the actual texts of the Conventions and of the Additional Protocolss as
well as to the Commentary of the ICRCs7 and to the standard manuals on the
law of war and humanitarian law.*
It is worth recalling, however, for the purposes of the present chapter,
some of the norms of humanitarian law applicable in international conflicts, in
order to bring out the nature and specificity of this branch of international
law. Generally speaking, the purpose of these norms is to ensure that the
belligerents shall not inflict on their adversaries harm out of proportion to the
object of warfare which is to destroy or weaken the military strength of the
enemy. 8g Some of these norms come under the so-called law of the Hague
(by virtue mainly of Convention No. IV of 1907 signed at the Hague and of
the Regulations annexed to that Convention), the fundamental principle of
which is that the belligerents do not have an unlimited choice of the means of
inflicting damage on the enemy; others form part of what is known as law
of Geneva (by virtue of the Conventions of 1949 signed at Geneva) according
to which persons placed hors de combat and those not participating directly
in the hostilities shall be respected, protected and treated humanely.l
It may seem naive to affirm such principles when those in charge of mili-
tary operations seek but one thing: to win the conflict at the least cost for
their side, and may even seek the total destruction of the enemy regardless of
any strategic consideration. The temptation is to conclude cynically that
military exigencies will always prevail in their minds over humanitarian prin-
ciples. Experience shows however that it is not impossible to reconcile hu-
manitarian considerations with military exigencies and to involve the military,
who, better than anyone, are acquainted with the horror of war, in this task.
The ratifications of the Geneva Conventions (more than 150) and the entry
into force on 7 December 1978 of the additional Protocols prove that, at least
at the level of legal commitment, the military and diplomatic authorities of
practically all countries wish to see military exigencies reconciled with hu-
manitarian principles. So long as the causes of armed conflicts have not been
eliminated, these norms of humanitarian law constitute a hope for the victims
of such conflicts; the effective application depends on their dissemination and
on the political will of the parties to the conflict to respect them.
From the very general principles mentioned above a number of more spe-
cific principles derive which are common to the different categories of victims
of war, as well as principles pertaining to the protection of wounded, sick and
shipwrecked persons (Conventions I and II), principles pertaining to the
treatment of prisoners of war (Convention III) and principles pertaining to
the protection of civilians (Convention IV).
A soldier who has been placed hors de combat is to be given shelter and to
be treated humanely. Medical care is to be given without discrimination,
except for reasons of medical urgency. Medical and religious personnel must
not be prevented from performing their functions, but they must observe
strict military neutrality. Should they fall into the hands of the enemy, the
latter can retain them only if the medical and religious needs of prisoners of
war so require; otherwise, repatriation is the rule. Even under detention,
such personnel enjoy certain facilities for the performance of their functions.
Other provisions of Conventions I and II concern the medical care dispensed
by the civilian population and relief societies, the immunity of medical build-
ings and establishments, the assignment of medical material, the means of
transport and the distinctive emblem.
As for prisoners of war (POWs), their treatment is governed by the 143
articles of Convention III. The detaining Power must treat them humanely,
respect their persons and their honour, and cannot transfer them to the
Stephen P. Marks
territory of a country which is not a party to the Convention, The sole infor-
mation that a POW is required to provide concerns his surname, first names, age,
rank and regimental number. The places of internment must be salubrious and
life must be organized in them in such a way as to maintain the physical and
mental health of POWs, including, adequate food and medical care and the
possibility of practising ones religion and of having intellectual and sports
activities. Detailed provisions govern work, financial resources, relations with
the outside and with the authorities, discipline and repatriation. In order for
POWs to be acquainted with these provisions, the Convention must be posted.
Lastly, norms pertaining to the protection of the civilian population are
contained in the 159 articles of Convention IV. While safety zones, in-
tended for wounded, sick, and disabled persons, expectant mothers, women
with young children and aged persons, have not been established as the
Convention provides (but without making it an obligation), it may sometimes
be possible to establish a neutralized zone in the region where fighting is
taking place for the protection of the local population and the wounded and
sick. Apart from these provisions, wounded and sick non-combatants, the
infirm, and expectant mothers are entitled to particular protection and re-
spect. Civilian hospitals and their personnel are protected and all civilians are
entitled to give news to their families and to receive news from them. The
most important norm concerning the civilian population is contained in article
27 of Convention IV which stipulates:
Protected persons are entitled, in all circumstances, to respect for their persons, their
honour, their family rights, their religious convictions and practices, and their manners and
customs. They shall at all times be humanely treated, and shall be protected especially
against all acts of violence of threats thereof and against insults and public curiosity.
Furthermore, protected persons must not be compelled to provide infor-

mation, and it is specifically forbidden to cause them physical suffering (not
only. .murder, torture, corporal punishments, mutilation and medical and
scientific experiments not necessitated by the medical treatment of a pro-
tected person, but also. any other measures of brutality whether applied
by civilian or military agents), to subject them to collective penalties, mea-
sures of intimidation or of terrorism, or reprisals. Pillage and the taking of
hostages are also prohibited. These are but a few examples of the rules
concerning the general protection of populations against certain effects of
war and the status and treatment of protected persons. Other provisions of
the Convention deal more particularly with aliens on the territory of a party
to the conflict, occupied territories and the treatment of internees.
The ICRC and the Diplomatic Conference have endeavoured to develop
measures for the protection of victims of international armed conflicts. This
subject is dealt with by Protocol I, which supplements the Geneva Con-
ventions, particularly with regard to wounded, sick and shipwrecked per-
sons, methods and means of combat, prisoner-of-war status and the civilian
population.
Some of the norms of protection provided for by the Protocol are particu-
larly relevant to human rights. For instance, Article 11 protects the physical
and mental well-being of protected persons and prohibits, in particular, muti-
lations or medical or scientific experiments not justified by medical treat-
ment. Persons carrying out medical activities compatible with professional
ethics cannot be punished for those activities nor be compelled to act in a
manner contrary to the rules of professional ethics or to reveal information
concerning the adverse party (Article 16). In addition, reprisals against the
wounded, the sick and medical personnel are prohibited (Article 20). As
regards methods and means of combat, the following basic rules are reaf-
firmed in Article 35:
Article 35 (Basic rules)

1. In any armed conflict, the right of Parties to the conflict to choose methods or means of
warfare is not unlimited.
2. It is forbidden to employ weapons, projectiles, and material and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended or may be
expected to cause widespread, long-term, and severe damage to the natural environment.
Perfidy (Article 37), the refusal to give quarter (Article 40), and attacks on
an enemy hors de combat (Article 41) are also prohibited.
The basic rule concerning respect for the civilian population specifies that
the Parties to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military objec-
tives and accordingly shall direct their operations only against military objec-
tives (Article 48). In addition, acts or threats of violence the primary
purpose of which is to spread terror among the civilian population, indis-
criminate attacks and reprisals against civilians are prohibited (Article
51).
Article 75 lists the fundamental guarantees enjoyed by civilians in the
power of a Party to the conflict and not protected by the Geneva Conven-
tions, namely, nationals of the interested Party to the conflict and combatants
who do not fulfil the conditions necessary for them to be considered as pris-
oners of war. The norms applied to them are those of humane treatment
covered by Articles 27, 31, 32,33 and 34 of the 4th convention and reiterated
in Article 4 of Protocol II, together with the judicial guarantees affirmed in
Articles 64 to 75 of the 4th Convention, including the principle of the personal
character of penal responsibility, the principle non bis in idem, presumption
of innocence, and the non-retroactivity of penal law. Lastly, special measures
are prescribed for women and children (articles 76-78).
The means employed to supervise the implementation of the Geneva Con-
ventions are examined in another chapter.4
4. COMPARISON BETWEEN THE DIFFERENT TYPES OF

CONFLICT SITUATIONS IN TERMS OF THE APPLICABLE
NORMS AND THE NOTION OF JUS COGENS
It has become clear that the different situations of violence considered here
give rise to the application of norms pertaining either to international human
rights law (IHRL) or to the international law of armed conflicts (ILAC),g5 or
to both at the same time. The level of protection afforded by IHRL is highest
in time of peace and diminishes as a situation approaches war, as when, for
instance, attacks on life due to lawful acts of war are permitted. Con-
versely, the level of protection afforded by ILAC is relatively limited in
peacetime (obligation to disseminate the Conventions, to modify legislation,
etc.), but is very developed when there is a situation of international war.
The relationship between the two systems is illustrated diagramatically in
Table II. The two curves cross roughly at the moment of civil war. For IHRL
this means a public emergency threatening the life of the nation, during
which the applicable norms may be restricted to those considered as non-
derogatable. For ILAC, the situation is one in which common article 3 of the
Geneva Conventions and article 4 of Protocol II apply. In other words at the
intersection of the two curves the minimum norms of the two systems apply.
Table II also shows that the level of protection afforded both by IHRL and
ILAC never descends below respect for norms having the character of jus
cogens. What is meant by this? As it appears in articles 44, 53, 60, and 64 of
the Vienna Convention on the Law of Treaties and in the deliberations of the
International Law Commission, the conception of jus cogens is founded on
the legal effects of a norm having the character of ju,s cogens. What is in-
volved, according to article 53 of the Vienna Convention, is a norm accepted
and recognized by the international community of States as one from which
no derogation is permitted and which can only be modified by a subsequent
norm of the same character. Such was the conception of several delegates to
the 1949 Diplomatic Conference in regard to the nature of the norms of the
Geneva Conventions. Moreover, several articles can be interpreted along
these lines on account of their objective nature, since they establish obliga-
tions which are not of a contractual character.g7 Common article 3 defines
rules which are applicable at any time and in any place and lays down,
according to the Commentary, imperative rules.s Similarly the provisions of
IHRL relating to emergency situations have the effect of limiting the power
of the contracting States to discontinue the application of certain articles.
Another approach to the notion of jus cogens consists in examining the
content of the norms. Professor Verdross includes, for instance, all norms of
general international law created for humanitarian purpose among the norms
of jus cogens. loo The International Law Association has identified as deserv-
ing urgent solution the question of the imperative character in respect of the
norms of international law Gus cogens) of the principles relating to the pro-
Table 8.2
Comparison of Level of Protection as a Function of the Type of
Conflict Under International Human Rights Law and
International Humanitarian Law
IHRL:
Effective
respect for
human rights/ILAC
II
Full application International human
OfjUS in hello rights law (IHRL)
IHRL: International law
Right of individual of armed conflicts
petition,
jurisdiction of
the Court/
Protective power
IHRL:
Limitations and
restrictions,
clausesof exe-
cution/ILAC:
Humanitarian
assistance
IHRL:
Derogations
clauses/
ILAC.
Conventions/
Minimum of com-
mon Article 3
to the Geneva
Conventions -------------------------- -____
Respectfor norms
having the character
of ,jus e0,qen.s
I
Isolated Conspiracy Civil war War of International
TYPE OF
CONFLICT acts of liberation war
violence
LEVEL OF -------------------------------
PROTECTION
public emergency threatening the life of the nation
PEACE 4 b WAR
tection of the human person contained in the Geneva Conventions.Ol It

would no doubt be false to claim that all the norms of ILAC and all the rights
of IHRL from which there can be no derogation have the character of jus
cogens. Rosalyn Higgins considers that neither the wording of the various
human rights instruments nor the practice thereunder lead to the view that
all human rights are jus coge?as, although she does recognize that there
certainly exists a consensus that certain rights-the right to life, to freedom
from slavery or torture-are so fundamental that no derogation may be
made. lo2 Indeed, not to consider some norms of IHRL and ILAC as impera-
tive norms having the character of jus cogens would disregard the obvious
legal effects of certain instruments and the fundamental character, unchal-
lenged by the international community, of several principles.
Table III below shows the interface of these norms and points out in
particular that certain norms considered to be fundamental in IHRL are not
so considered in ILAC and vice-versa, while other are common to IHRL and
ILAC and, more often than not, are also norms having the character ofjus
cogens (JC).
Conclusion
The three types of emergency situations examined in this chapter differ
from each other in many respects, but they also have many features in
common. For countries which have not known affluence for centuries, if ever
they did, under-development is the rule rather than the exception. On the
other hand, a natural catastrophe places before the national authorities a new
situation with which they may not be able to cope. Armed conflicts, produce
situations in which the authorities are challenged either from within or out-
side the country by a military force which, by definition, does not wish to
comply with the laws of the State in question. The three situations differ as to
their duration, the appropriate means of contending with them, the relation-
ship between the national authorities and the population, and the sources of
the applicable rules.
They nevertheless have enough in common for it to be possible to put
forward a few general ideas concerning human rights in emergency situa-
tions. First of all, all three types of situations relate to major concerns of the
international community. The establishment of a new international economic
order provides, for the whole of the United Nations system, fresh impetus
for the fight against under-development; the establishment and development
of the office of the United Nations Disaster Relief Co-ordinator and the
magnitude of recent catastrophes illustrate the growing importance of this
question; the Geneva Diplomatic Conference, in which more than 130 delega-
tions participated, and the deadly internal as well as inter-State conflicts
which have arisen in many parts of the world, emphasize the need to adapt
the relevant laws to current realities.
Table 8.3
Interface Between International Law of Armed Conflicts and
International Human Rights Law Showing the Place of Norms
Having the Character of Jus Cogens
Minimum of ILAC: Non-derogatable

humane treatment Norms of IHRL
sheltering and
pillage political rights, rights

of the family, right to
a name, to a nationality
(ACHR)
NOTES:
1. COV. C & P-International Convention on Civil and Political Rights.
2. ACHR-American Convention of Human Rights.
3. IC-The indestructible core of human dignity (prohibition of torture, slavery, degrading or
humiliating treatment or punishment, the arbitrary deprivation of life, adverse discrimination and
judicial guarantees recognized as indispensable).
4. J&Norms having the character ofjus cogens.
More important than the topicality of these questions are the links which
exist between them. Speaking of the drought in Africa, the Director-General
of Unesco said:
We must learn fast, very fast, from this terrible experience in view of the imminence, if not
already the actual presence, of other calamities, caused in this case by an economic crisis
and a recession, the effects of which, by their unequal impact on nations and social groups,
bring starkly into the open the inequalities which were previously concealed from many
people by affluence and its attendant sense of well-being in the wealthier countries. Yet
these dire events are not the result of fate, to be received with resignation. When some-
thing is described as a natural disaster, it is in most cases merely because its causes or
workings cannot be discerned nor a remedy found.
Natural disasters, indeed have a much more devastating effect upon the
developing countries than upon the rich countries, precisely because the
state of under-development makes them more vulnerable. And these same
under-developed countries are the theatre of armed conflicts, which the major
industrial powers have been able to eliminate from their mutual relations by
shifting them towards the under-developed periphery.
These three situations relate to moments in the life of a State entity when
that entity is least inclined to burden itself with human rights. Concerned by
the need to assure the survival of the nation, the national authorities wish to
be bound by as few constraints as possible.
In these circumstances, it is essential and urgent to define clearly the
human rights obligations that States must respect whatever the situation
prevailing on their territories. Considering themselves to be engaged in the
struggle for human rights when they take measures in favour of develop-
ment, to assist victims of disasters, to liberate themselves or to repulse the
aggressor, States will reveal the full measure of their attachment to human
rights by respecting the human rights applicable in such exceptional circum-
stances which, it is to be hoped, will be more and more exceptional in fact.
As long as these conditions exist, they will reduce human rights to their most
precarious level and it is at that level that we can see the extent to which
human rights are reality or mere illusion.
NOTES
1. H.C. Black, Blacks Law Dictionary (5th Edition), West Publishing Co., Minnesota,
1979, p. 469.
2. A Supplement to the Oxford English Dictionary, Vol. 1, A-G, p. 934, Oxford, 1972.
3. The significance of the notion of under-development, a term covering a highly com-
plex reality, is briefly discussed below.
4. One of the best descriptions of the terminological and methodological problems of
the notions of development and under-development is to be found in Gunnar Myrdal,
Asian Drama: An Inquiry into the Poverty of Nations, the Twentieth Century Fund, New
York, 1968, Vol. III, Annex 1, pp. 1839-1878. More recently, among the hundreds of
outstanding contributions to the understanding of the problems of development, Willy
Brandt, in his introduction to the report of the commission he chaired, wrote: One must
avoid the persistent confusion of growth with development. .North-South, a Programfor

Survival. The Report of the Independent Commission under the Chairmanship of Willy
Brand& the MIT Press, Cambridge, Massachusetts, 1980, p. 23. (Hereinafter referred to as
Brandt Commission Report).
5. See Malcolm S. Adiseshiah: It is time to begin: the human role in development: some
further reflectionsfor the seventies, Unesco, Paris, 1972.
6. General Conference, Nineteenth Session, Medium-Term Plan (1977-1982),Unesco,
1977, para. 323. Concerning the interrelationship between human rights, peace and devel-
opment, see the report of a UN seminar on the subject held in New York on 3-14 August
1981, Dot. ST/HR/SER.AIlO; and Stephen Marks, The Peac+Human RightsDevelopment
Dialectic, Bulletin ofPeace Proposals, Vol. 11, No. 4, 1980, pp. 339-347.
7. Among the vast literature on this subject, see, for example, the Brandt Commission
Report, Chapters 1,2,3,4,9, 12, 13; Dieter Ernst (ed.) The New International Division of
Labour, Technology, and Under-Development, Consequences for the Third World-Campus
Verlag, Frankfurt/New York, 1980; Mohammed Bedjaoui Towards a New International
Economic Order, Unesco, Paris, Holmes and Meier Pub., New York-London, 1979.
8. See supra, Chapter 1. See also, Hector Gros Espiell, The Implementation of United
Nations Resolutions Relating to the Right of Peoples under Colonial and Alien Domination
to Self-Determination, report for the UN Sub-Commission on Prevention of Discrimination
and Protection of Minotities, UN Dot. EICN4ISub.21390, in particular the analysis of the
definition, scope and legal nature of self-determination.
9. Although earlier formulations have been made, the first systematic attempt to
define this right was made by Keba MBaye. See Le droit au developpement comme un
droit de lhomme, RDJIHRJ, Vol. V, No. 2-3, pp. 503-534 (19721,The Emergence of the
Right to Development as a Human Right in the Context of a New International Economic
Order, Unesco, Dot. SS-78iCONF.63018, and Le developpement et les droits de lhomme,
Rapport introductif, Colloque de Dakar sur le developpement et les droits de lhomme
(Septembre 19781, Revue stnegulaise de Droit, December 1977, No. 22, pp. 19-51, esp.
33-51. A considerable amount of background material on the subject may be found in the
report of Unescos expert meeting of 1978 on Human Rights, Human Needs and the
Establishment of a New International Economic Order, which was submitted to the Com-
mission on Human Rights for its consideration of the right to development, along with the
Secretary-Generals report (EiCN.411334). See also Stephen Marks, Emerging Human
Rights: A New Generation for the 198Os? Rutgers Law Review, Vol. 33, No. 2, 1981, pp.
444-445.
10. One of the first articles to tackle this problem clearly is that of Karel Vasak, Droit
de lhomme et sous-developpement, Comprendre, No. 31-32, Societe europeenne de cul-
ture, Venice, 1968, pp. 1-6. See also, Stephen Marks, Human Rights and Development:
Some reflections on the study of development, human rights and peace, Bulletin of Peace
Proposals, Vol. 8, No. 3, 1977, pp. 236-246; Philip Alston, Human Rights and the New
International Development Strategy, Bulletin of Peace Proposals, Vol. 10, No. 3, 1979,
pp. 281-290;Osita C. Eze, Les droits de lhomme et le sous-developpement, RDJIHRJ, Vol.
XII, Nos. 1-2, pp. 5-18; see also Study on the New International Economic Order and the
Promotion of Human Rights, Progress Report by Raul Ferrero, Special Rapporteur,
Sub-Commission on Prevention of Discrimination and Protection of Minorities (UN
Doc.EiCN.4Sub.21477, 18 August 1981).
Il. See, concerning the origin of this clause, Albert Verdoodt, Naissance et significa-
tion de la Declaration universelledes droits de lhomme, Louvain-Paris, 1964, pp. 308-309.
12. Pursuant to Resolution 9 (XXVII) of the Sub-Commission on Prevention of Discrimina-
tion and Protection of Minorities, a Special Rapporteur prepared a Study of the Individ-
uals Duties to the Community and the Limitation on Human Rights and Freedoms under
Article 29 of the Universal Declaration of Human Rights (UN doc.E/CN.4iSub.2/432/Rev. 1,
and Addsl-7). The special Rapporteur mentions, in connexion with this clause, that in
certain regions of the world community. the pressing necessity is the satisfaction of basic
social needs, the promotion of the well-being and economic security of the great masses.
(UN Doc.E/CN.4/Sub.2/432, (Rev.l), para. 584).
13. Verdoodt, op. cit., pp. 269 and 271.
14. For a more detailed account of this Covenant, see supru, Chapter 5 and infra
Chapter 11.
15. Resolution 2081 (XX) of 20 December 1965, Resolution 2217 (XXI) of 19 December
1966 and Resolution 2339 (XXII) of 18 December 1967.
16. Document A/CONF.32/L.2.
17. The value of the affirmations of the Proclamation is in this respect challenged by
some, e.g. Moskowitz, Znternational Concern with Human Rights, Sijthoff, Leyden; Oceana
Publications Inc., Dobbs Ferry, N.Y., 1974, pp. 18-20.
18. Requested by the Commission in its Resolution 14 (XXV) of 13 March 1969, the
study was published in 1973 under the reference number EiCN.4/1108 and Add. 1 to 10;
supplemented by observations, conclusions and recommendations, it was revised in 1974
(E/CN.4/1131 and Corr. 1).
19. Operative paragraph 2 of Resolution 1867 (LVI) adopted on 17 May 1974. For more
recent developments in relation to the International Development Strategy, see Alston, lot.
cit.
20. See Resolution 2626 (XXV) of 24 October 1970.
21. See document A/9946 of December 1974.
22. Commission Resolution 6 (XXXVI). Pursuant to the same resolution, the United
Nations organized a seminar on this subject in Geneva on 30 June-11 July 1980. See Report
STIHRISER.AIS).
23. General Assembly Resolution 321130of 16 December 1977, para. (b).
24. It is worth quoting in this regard para. 1 (a) of Resolution 321130,which has already
been mentioned: All human rights and fundamental freedoms are indivisible and
interdependent.
25. United Nations Division of Human Rights, Seminar on Human Rights in Develop-
ing Countries, Dakar, 8-22 February 1966, Report under reference number STITAOIHRI25,
para. 20. See also report of the Working Group on Slavery of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities at its fltlh session(EICN.4/Sub.Z%434.)
According to information submitted to the Sub-Committee there are still 250,000 slaves in
the world. To take the example of Mauritania, the information minister, Dahane Ould
Ahmed Mahmoud, declared in July 1980that Slavery is the most primitive, hateful form of
exploitation of man by man. We know it still exists in our country. The previous colonial and
neo-colonial regimes tried to cover up the practice. It will take a long process before we are
finally rid of this hateful practice. (International Herald Tribune, 12 September 1980.)
26. Nearly one hundred developing countries have ratified one or both instruments.
27. STlTAOIHRI25/, paras. 36-43.
28. The Convention on the Prevention and Punishment of the Crime of Genocide has
been ratified by over 50 developing countries.
29. See Study of the Question of the Prevention and Punishment of the Crime of
Genocide, prepared for the Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities. UN Doe. EiCN.4/Sub.2/416.
30. See, for instance, United Nations Division of Human Rights, Seminar on Special
Problems relating to Human Rights in Developing Countries, Nicosia, Cyprus, 26 June to 9
July 1969, report published in 1970, reference number ST/IAO/HRWG, paras. 87-100 and
151. The magistrates, lawyers and professors of law participating in the Conferences of
Jurists organized by the International Commission of Jurists in Athens (19511,Delhi (1959),
Lagos (1961), Bangkok (1965), Barbados (1971), and Dakar (1978) did not fail to emphasize
the fundamental need for independent and impartial tribunals in the developing countries.
As regards the Arab States, the Symposium of Human Rights and Fundamental Freedoms
in the Arab Homeland, organized by the Union of Arab Lawyers in Baghdad on 18-20 May
1979, called on Arab States to abolish tribunals of exception, apply due process of law and
guarantee the independence of the judiciary. Similarly, the African Charter of Human and
Peoples Rights, which was adopted in June 1981, includes substantial provisions concerning
the administration of justice. At the colloquium on Human Rights and Economic Develop-
ment in Francophone Africa, held in Butare, Rwanda, the participants agreed that the
autonomy and independence of the judiciary must be strengthened in order to ensure the
proper and impartial administration of justice. See Hurst Hannum, The Butare Collo-
quium on Human Rights and Economic Development in Francophone Africa: A Summary
and Analysis, Universal H uman Rights, Vol. 1, No. 2 (AprilJune 1979), pp. 63-87, at
p. 84.
31. STITAOIHRI25, paras. 60-87.
32. See supra, Chapter 6 and infra, Chapter 12.
33. Verdoodt, op. cit., pp. 170-175.
34. STITAOIHRI25, paras. 88-105.
35. Ibid., para. 92.
36. Additional Protocol to the European Convention on Human Rights, of 20 March
1952, Article 1.
37. American Convention on Human Rights of 22 November 1969, Article 21.
38. STPrAOIHRI25, paras. 128-149. See more generally International Commission for
the Study of Communication Problems, Many Voices, One World, Kogan Page, London/
Unipub, New YorWUnesco, Paris, 1980.
39. Cf. STITAOIHRI25, paras. 150-179.
40. An International Seminar on Human Rights, Their Protection and the Rule of Law
in a One-Party State convened by the International Commission of Jurists in Dar-es-Salaam
in September 1976 concluded that the one-party system was fully consistent with the
preservation of fundamental human rights and t,he maintenance of the rule of law, provided
that its political form was a truly democratic one (emphasis added), Human Rights in a
One-Party State, Search Press, London, 1978, p. 110.
41. The Unesco text quoted earlier continues as follows: Development imposed from
above may well remedy certain injustices and reduce potential sources of conflict, but it
cannot contribute to the promotion of human rights and the strengthening of peace as
decisively as development centered on man, and that alone, can do.
42. Keba MBaye, Les &alit& du monde noir et les droits de lhomme, RDHIHRJ,
Vol. II, No. 3, 1969, p. 389.
43. Ibid., p. 383.
44. Resolution 9 (XXXVII) adopted on 21 August 1974 by 13 votes to 0, with 10 absten-
tions. The work plan of the study requested by this resolution includes examination of the
question whether the general welfare can be regarded as a justification for temporary
limitations to certain rights and freedoms with a view to the acceleration of economic and
social development in the developing countries or to ensure environmental protection or
public health. EICN.4/Sub.2iL.627, annex, paras. 18, 19.
45. The legal analysis of these rules, based on the principal human rights instruments,
will be provided in the next section. See also Rosalyn Higgins, Derogations from Human
Rights Treaties, The British Yearbook qf International Law, 1967-1977,pp. 281-320.
46. See Oscar M. Garibaldi, General Limitations on Human Rights: The Principle of
Legality, Harvard International Law Journal, Vol. 17 (1976), pp. 503-557.
47. By natural catastrophe is meant, in particular, epidemics, famines, earthquakes,
floods, tornadoes, typhoons, cyclones, avalanches, hurricanes, volcanic eruptions, drought
and fire. The definition given by the Red Cross is as follows: A disaster is a catastrophic
situation in which the day-to-day patterns of life are-in many instances-suddenly dis-
rupted and people are plunged into helplessness and suffering and, as a result, need protec-
tion, clothing, shelter, medical and social care, and other necessities of life. League of Red
Cross Societies, Red Cross Disaster Relief. Handbook, 1976, Chapter II, p. 13.
48. By Resolution 2816 (XXVI) of 14 December 1971, the General Assembly invited the
Secretary-General to appoint a relief co-ordinator, whose office (UNDRO) entered into
service on 1 March 1972. The Red Cross has developed principles of action and planning in
cases of disaster. See League of Red Cross Societies, Red Cross Disaster Relief. Handbook,
1976.
49. On the problems of control by the State of public information in time of natural
disaster, see Disaster Prevention and Mitigation, A Compendium of Current Knowledge,
Vol. 10, Public Information Aspects, Office of the United Nations Disaster Relief Co-
ordinator, United Nations, New York, 1979.
50. Hours of Work (Industry), 1919 (No. l), Art. 14; The Night Work of Young Persons
(Industry), 1919 (No. 6), Art. 4; Forced Labour, 1930 (No. 291, Art. 2(2) (d); Hours of Work
(Commerce and Offices), 1930 (No. 301, Art. 9; Hours of Work (Mines and Coal) (revised),
1935 (No. 46), Art. 16; The Night Work of Young Persons (Industry) (revised), 1948 (No.
901, Art. 5; Work Clauses (Public Contracts), 1949 (No. 941, Art. 8; and Weekly Rest
(Commerce and Offices), 1957 (No. 1061,Art. 13.
51. Art. 2, para. 2 (d). Emphasis added.
52. Forced labour, extract from the report of the thirty-eighth session (1968) of the
Committee of Experts on the Application of Conventions and Recommendations, ILO,
Geneva, 1968, p. 201.
53. To this list may be added the derogation clauses of exception contained in the
International Labour Conventions mentioned above and Article 30 of the European Social
Charter. This last article authorizes derogations from the obligations of the Charter without
identifying the obligations which have to be respected even in emergency situations.
54. International Labour Conference, 58th session, 1973, Report III (Part 4A).
55. Petition No. 332/57, Yearbook 2, pp. 309-341.
56. Publications of the European Court, Series A, 1961 p. 56 et seq. (emphasis added).
In its definition given in the same case, the Commission states that the emergency affects
not certain individual groups, but the whole population. Publications of the European
Court, Series B, 1960-1961.
57. The passages quoted are from Art. 8 of the Covenant; the other texts are almost
identical, except for that of the International Labour Conventions, already quoted.
58. Application No. 1468/62, Yearbook 6, p. 279.
59. For the history and theory of the right and duty of resistance, see Haim A. Cohn,
The Right and Duty of Resistance, RDHIHRJ, Vol. I, No. 4, 1968, pp. 491-516.
60. E. de Vattel, Le droit des gens ou principes de la loi naturelle appliques a la
conduite et aux affaires des nations et des souverains, 1758, new edition, Paris, 1830, Book
II, Chapter IV. para. 56.
61. This generally recognized principle is expressed by numerous authors, including, in
particular, B.V.A. Roling, International Law in an Expanding World, Pjanbatan, 1980.
62. This idea was reaffirmed by the General Conference of Unesco at its 18th session in
Resolution 11, preambular para. 17: Considering that peace cannot consist solely in the
absence of armed conflict but implies principally a process of progress, justice and mutual
respect among the peoples designed to secure the building of an international society in
which everyone can find his true place and enjoy his share of the worlds intellectual and
material resources, and that a peace founded in injustice and violation of human rights
cannot last and leads inevitably to violence (underlining added).
63. On the necessity to have recourse to armed struggle to achieve respect for human
rights, see P. Pierson-Mathy, La creation de LEtat par la lutte de libhration nationale; le
cas de Guinee Bissau, Collection New Challenges to International Law, Paris, Unesco,
1980.
64. See Johan Galtung, The Specific Contribution of Peace Research to the Study of
the Causes of Violence: Typologies, in A. Joxe (ed.), Violence and its Causes, Paris,
Unesco, 1980, pages 83-96.
65. See Fifth United Nations Congress on the Prevention of Crime and the Treatment
of Offenders (Geneva, 1-12 September 19751,The Treatment of Offenders, in Custody or in
the Community, with Special Reference to the Implementation of the Standard Minimum
Rules for the Treatment of Prisoners Adopted by the United Nations, Working Paper
prepared by the Secretariat, Document AICONF5616; and Sixth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders (Caracas, Venezuela, 25 August
to 5 September 19801, The Implementation of the United Nations Standard Minimum
Rules for the Treatment of Prisoners, Working paper prepared by the Secretariat, Docu-
ment A/CONF.87/11.
66. This draft convention was prepared further to a proposal of the Fifth United Na-
tions Congress, endorsed by the General Assembly in Resolution 3452 (XXX) of 9 Decem-
ber 1975.By resolutions 32/62,331178,34/167,35/178and36160the General Assembly requested
the Commission on Human Rights to draw up the Convention.
67. The General Assembly requested the Commission on Human Rights to study this
question in its resolution 3453 (XXX) of 9 December 1975. The Commission asked the
Sub-Commission on the Prevention of Discrimination and Protection of Minorities to draw
up a body of principles. The draft was adopted by the Sub-Commission in 1978 (resolution 5
C (XxX1). By its resolution 341169of 17 December 1979, the General Assembly adopted the
Code of Conduct for Law Enforcement Officials, but decided, by resolution 35/177 of 15
December 1980 to defer to its thirty-sixth session the draft Body of Principles for the
Protection of All Persons under any Form of Detention or Imprisonment. In relation to this
subject, Daniel ODonnel of the staff of the International Commission of Jurists (ICI)
prepared a study on States of Siege or Emergency and Their Effects on Human Rights
with recommendations by the ICI which was submitted to the Sub-Commission (Dot.
E/CN.USub.2/NG0/93, 26 August 1981).
68. By its resolution 3453 (XXX) of 1975, the General Assembly invited the World
Health Organization to give further attention to the study and elaboration of principles of
medical ethics relevant to the protection of persons subjected to any form of detention or
imprisonment against torture and other cruel, inhuman or degrading treatment or punish-
ment. The invitation was conveyed to the WHO by resolution 31185of 13 December 1976. In
January 1979, the Executive Board of WHO decided to endorse the principles set forth in a
report of the Director General on Development of codes of medical ethics containing, in an
annex, a draft body of principles prepared by the Council for International Organizations of
Medical Sciences. The draft principles were brought to the attention of the General Assem-
bly at its 34th session (document A/34/273), which requested the Secretary General to
circulate the draft Code of Medical Ethics to Member States, Specialized Agencies con-
cerned and NGOs and to report to the 35th session (resolution 341168).Comments were
communicated to the General Assembly (Does. A/35/37 and Add. 1 and 2, A/36/140 and Add.
l-4), who continued considering the matter in 1982 (resolution 36161).
69. See supra, Chapter 5 and further on in this chapter.
70. Several draft Preambles to the Conventions contained a direct reference to the
Declaration but were not adopted by the Diplomatic Conference. See Records of the Diplo-
matic Conference of Geneva, Vol. III (Annexes), pp. 96-100 and the proceedings, Vol. II-A,
pp. 761-766.
71. This is the principle of endeavouring to prevent and alleviate human suffering
wherever it may be found which was affirmed, inter alia, by the 20th International Confer-
ence of the Red Cross, Vienna, 1965.
72. These terms were first employed at the 17th International Conference of the Red
Cross at Stockholm in 1948. The more conventional terms of civil war still appeared in the
resolutions of the 10th and 16th International Conferences of the Red Cross.
73. ICRC, The Geneva Conventions of August 12,1949, Commentary, Vol. IV, Geneva
1956, p. 39.
74. Ibid., pp. 44-46.
75. Resolution XXIII. See also General Assembly Resolution 2677 (XXV) of 9 Decem-
ber 1970.
76. See, inter alia, Protection of victims of non-international conflicts, report submit-
ted by the ICRC to the 21st International Conference of the Red Cross, Istanbul, Septem-
ber 1969, published in Geneva, May 1969; and volume V of the documentation submitted by
the ICRC under the same title to the Conference of Government Experts, Geneva, May-
June 1971, published in Geneva, January 1971.
77. The material field of application of Protocol II expressly excludes situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and
other acts of a similar nature, as not being armed conflicts. This Protocol shall apply to all
conflicts which are not covered by Protocol I (i.e. conflicts between two or more Contracting
Parties or wars of national liberation) which take place in the territory of a High Contract-
ing Party between its armed forces or other organized armed groups which, under respon-
sible command, exercise such control over a part of its territory so as to enable them to
carry out sustained and concerted military operations and to implement this Protocol.
(Article I of Protocol II). These two Protocols were adopted by the Diplomatic Conference
on 10 June 1977 and entered into force on 7 December 1978 in accordance with Article 25 of
Protocol I and Article 23 of Protocol II.
78. The draft submitted by the ICRC to the Stockholm Conference of 1948 quoted as
examples of non-international armed conflicts civil war, colonial conflicts, or wars of reli-
gion. The Conference decided not to include examples.
79. See K.J. Partsch, sz~pru, Chapter 4.
80. Among the many resolutions the following may be quoted for reference: 2767 (XXVI),
2795 (XXVI), 2796 (XXVI), 2871 (XXVI), 2874 (XXVI), 2908 (XXVII), 2918 (XXVII), 2945
(XXVII), 2946 (XXVII), 2955 (XXVII), 2979 (XXVII) and 2980 (XXVII).
81. The conditions are those required of organized resistance movements, namely:
(a) that they are under a command responsible to a Party to the conflict for its subordi-
nates; (b) that they distinguish themselves from the civilian population in military opera-
tions; (c) that they conduct their military operations in accordance with the Conventions and
the present Protocol. See ICRC, Draft Additional Protocols to the Geneva Conventions of
August 12, 1949. Commentaries, Geneva, 1973, pp. 48-54.
82. See the favourable interpretation of Georges Abi-Saab, Wars of National Libera-
tion and the Laws of War, Annales dVtudes internationales, Vol. 3, Geneva, 1972, pp.
93-117; and the unfavourable interpretation of Henri Meyrowitz, Les guerres de liberation
et les Conventions de Geneve, Politique I?trcwzg&re, 39th year, No. 6, 1974, pp. 607-727.
See also, Michel Veuthey, GuSrilla et droit hwnanitaire Institut Henry-Dunant, Geneva,
1976, La guerilla: le probleme du traitement des prisonniers, Annales dt%udes internatio-
nales, Vol. 3, Geneva, 1972, and Guerres de liberation et droit humanitaire, RDHIHRJ,
Vol. VII, No. 1, pp. 99107, and Charles Chaumont, La recherche dun critere pour lintegration
de la guerilla au droit international humanitaire comtemporain, Mdlanges offeertsiL Charles
Rousseau, La CommunautL internationale, Editions A. Pedone, Paris, 1974, pp. 43-61;
Bert V.A. Roling, The Legal Status of Rebels and Rebellion, Jownal ofPeace Research,
Vol. XIII, 1976, pp. 149-163,and Natalino Ronzitti, Wars of National Liberation-A Legal
Definition, The Italian Yearbook of International Law, Vol. I, 1975,pp. 192205. Meyrowitz
has proposed that this category of conflicts be considered as a distinctive category of
international but not inter-State armed conflict. Henri Meyrowitz, La guerilla et le droit de
la guerre: problemes principaux, Revue belge de droit international, Vol. VII, 1971-1, pp.
56-72, p. 64.
83. The amendments proposed at the First Diplomatic Conference with a view to ex-
tending the application of the Conventions and the Protocols to wars of liberation are to be
found under reference CDDHIlI5, 11,13,41, and 42. The text just quoted, CDDHIlI71, was
submitted by Argentina, Honduras, Mexico, Panama and Peru and adopted by 70 votes to
21 with 13 abstentions.

85. Final Record of the Diplomatic Conference of Geneva of 1949,4 vols., Bern, Federal
Political Department, 1949.
86. Final Record of the Diplomatic Conference on the Reaffirmation and Development
of InternationalHumanitarian Law Applicable in Armed Conflicts (1974-1977), 17 vols.,
Bern, Federal Political Department, 1978.
87. ICRC, The Geneva Conventions of August l&,19/9, Commentary, published under
the direction of Jean S. Pictet, Vol. I to IV, Geneva, 1952-1960.
88. Delio Jaramillo Arbelaez, DerecIw interna&& humanitario (Convenios de Gin&m);
Bogota, Colombia, Universidad Santo Thomas de Aquino, 1975;G. Balladone-Pallieri, Diritto
Bellico, 2nd edition, Padova, CEDAM, 1954; S.D. Bailey, Prohibitions and Restraints in
War, London, Oxford University Press, 1972;G. Cansacchi, Nozioni di Diritto Internazionale
Bellico, 4th ed. Torino, Giappichelli, 1963; E. Castren, The Present Law of War and Neu-
trality, Helsinki, Suomalaisen k.s.k.o., 1954; G. L. Dorsey (ed.1 The Laul of Conflict, Saint
Louis, 1973; G.I.A.D. Draper The Geneva Conventions of 1949; Collected Courses of the
Hague, Academy of International Law, Vol. 114, 1965; R.A. Falk, Law Morality and War
in the Contemporary World, New York, Praeger, 1963; L. Friedman, The Law of War: A
Documentary History, New York, Random House, 1972, 2 ~01s;M. Greenspan, The Mod-
ern Law of Lnnd Warfare, Berkeley, University of California Press, 1959; A. Guerrero
Burgos, Nociones de Derecho de Guerra, Madrid, Jura, 1955; J. Hinz, Kriegsvolkerrecht,
Cologne, Heymanns, 1957; F. Kalshoven, The Law of Warfare: A Summary of its Recent
History and Trends in Development, Leyden, Sijthoff and Geneva, Henry Dunant Insti-
tute, 1973; R.J. Miller, The Law of War, Lexington Books, Massachusetts, 1975; M.S.
McDougal et F.P. Feliciano, Law and Minimum World Public Order: The Legal Regula-
tion of International Coercion, New Haven, Yale University Press, 1961; L. Oppenheim
(H. Lauterpacht, ed.) International Law: A Treatise, Vol. II: Disputes, War and Neutral-
ity, 7th ed., London, 1963; J.S. Pictet, Les principes du droit international humanitaire,
Geneva, 1966;J.S. Pi&et, Humanitarian Law and the Protection of War Victims (series of
lectures given at the International Institute of Human Rights, Strasbourg, 1972), Henry
Dunant Institute, 1975; A.I. Poltorak & L.I. Savinskij, Vooruzhennye Konflikty
imezhdunarodnoe pravo osnovnye problemy (Armed Conflicts and International Law, Basic
Problems), Moskva, Nauka, 1976; G. Schwarzenberger, International Law as Applied by
International Courts and Tribunals, Vol. 2: The Law of Armed Conflict, Westview Press,
Boulder, Colo. and London, 1968; J. Stone, Legal Controls of International Conflict: A
Treatise on the Dynamics of Disputes and War-Law, 2nd ed., Revised, New York, Rine-
hart and Company, 1959; D.W. Ziegler, War, Peace and International Politics, Boston.
See also J. Toman & Huynh Thi Huong, International Humanitarian Law. Basic Bibliog-
raphy, Geneva, Henry Dunant Institute, 1979 for extensive additional references.
89. The terms chosen to express this principle, as well as several others referred to
further on, are taken from J. Pictet, Humanitarian Law and the Protection of War Victims
(series of lectures given at the International Institute of Human Rights, Strasbourg, 1972),
Henry Dunant Institute, 1975, p. 31.
90. Ibid., p. 33.
91. Ibid.
92. These conditions are set out in article 44 of Protocol I.
93. The text of this article is reproduced above.
94. See infru, C. Dominic& Chapter 14.
95. It is possible to conceive of humanitarian law as a branch of IHRL since what is
involved is respect for human rights in periods of armed conflict to adopt the terms used
by the United Nations since the Teheran Conference (see Resolutions 2444 (XXIII), 2852
(XXVI) and 3032 (XXVII)). For the sake of clarity, IHRL and ILAC are considered here to
be two separate systems of legal protection. The two systems are also systematically
compared in Aristidis S. Calogeropoulos-Stratis, Droit humanitaire et droit de lhomme. La
protection de la personne en p&ode de conflit arrn6, Graduate Institute of International

Studies, Geneva, 1980.
96. See for instance, Records of the Diplomatic Conference of Geneva, Vol. III (An-
nexes), No. 187, 188, 189, pp. 97-98.
97. It is possible to analyze in this way common articles 1 and 2 of the four Conventions,
article 7/7/7/8 respectively and 51/52/131/148respectively. See also article 60, para. 5, of the
Vienna Convention.
98. Commentary, vol. IV, p. 40.
99. See Table 8.1.
100. Jus dispositivum and jus cogens in International Law, American Journal of
International Law, 1966, Vol. 60, p. 59. See also The Concept of Jus Cogens in Znterna-
tional Law, Papers and Proceedings (report of the Conference organized by the Carnegie
Foundation at Lagonissi, Greece, April 1966, Geneva, 1967, pp. 13, 99, 106 and 107.
101. Resolution adopted at the 54th Conference, The Hague, 1970.
102. Rosalyn Higgins, Derogations under Human Rights Treaties, The British Year-
book of International Law 1976-1977, Oxford, Clarendon Press, 1978, p. 282.
103. Address by Mr. Amadou-Mahtar MBow at the opening of the 12th Summit Confer-
ence of the Organization of African Unity, Kampala, 29 July 1975.
Part II
International Institutions
for the Protection and
Promotion of Human Rights
9 The Distinguishing
of Institutions
Criteria
Karel Vasak
The growing importance of human rights in contemporary society is shown

not only by the increasing number of relevant texts of varying legal value,
but also by the great diversity of institutions competent in the matter. It has
become apparent that a halt should be called in the output of legal texts: if,
nevertheless, the international community as a whole, through the interme-
diary of the United Nations or its specialized agencies, or a group of States
forming together a regional organization feel a pressing need to draft new
instruments, it is to be hoped that these instruments will not take the form of
independent Conventions but will become genuine regulations governing the
application and interpretation of the major general Conventions of human
rights (Covenants, European and American Conventions). It can indeed be
asserted that the new human rights can practically all be attached, by way
of interpretation, to one of the rights already included in the general Conven-
tions. Thus, the unity of the field of human rights would be better protected,
and at the same time the so-to-speak constitutional character of the major
general Conventions on human rights would be emphasized.
Does a halt also need to be called in the case of human rights institutions?
Here, too, it is essential that the variety of the machinery should be neither
a symbol nor a cause of anarchy. It is necessary, therefore, to take stock of
the situation, and I wish to indicate a few signposts towards that end. The
approach here will not be to describe the existing institutions, but to make a
comparative analysis of them based on five criteria: the task of the institu-
tion; the functions carried out by the institution; the scope of the activity of
the institution; the technique used by the institution; the legal nature of the
institution.
1. THE TASK OF HUMAN RIGHTS INSTITUTIONS

Institutions responsible for implementing human rights are usually entrusted
with one of two tasks, very seldom with both at the same time: the promotion
of human rights or the protection of human rights. This distinction is so
216 Karel Vasak
well-known at the international level that the reasons behind it tend to be-
come blurred; it must therefore be clarified before it can be used for a review
of existing institutions.
(a). Promotion and protection of human rights

In States where the legal system is based on Roman law, the notion of
promotion has only recently gained a foothold, to describe an aspect of
business life in the United States-sales promotion. Admittedly these States
were already familiar with social promotion: the effort to disprove, through
legislative reforms, the Marxist analysis of a society composed of perma-
nently antagonistic classes. The notion of promotion as applied to human
rights has kept a certain Anglo-Saxon, above all American, overtone. For a
long time it set a problem for the drafters of international texts on human
rights, who translated it into French as progrks or dkveloppement, until it
was finally decided not to attempt a translation at all but to use the same
word which, after all, is perfectly good French.
The promotion of human rights3 implies action resolutely directed toward
the future: the question of human rights is seen as containing a lacuna,
because they are not all, or are only incompletely, guaranteed under national
legislation or international law, or because they are not sufficiently under-
stood by the persons entitled to them or by the States and their subsidiary
bodies which are bound to respect them. In these circumstances, a body for
the promotion of human rights will attempt to determine inadequacies and
even violations, not so much in order that they may be punished but rather
that similar situations may be prevented from recurring in the future.
The protection of human rights appears to have, in many respects, a
diametrically opposed aim. Intended to ensure the observance of human
rights as established under existing law, the institution for protection leads,
by the sanctions to which protection necessarily gives rise, towards a future
that perpetuates the past. It relies mainly on court process, whereas the
institution for promotion will make use of every available legislative tech-
nique, including studies, research, reports, and the drafting of texts.
It is not surprising that the socialist countries, which consider contempo-
rary law and society to be doomed, have always shown, at the international
level, a clear preference for institutions designed to promote human rights.4
Similarly, in developing countries, to protect human rights in the social con-
ditions now existing would mean accepting that man should live there as he
does now, whereas it is first necessary, if not to create him, at least to
transform him.
The contradiction described above between promotion and protection, how-
ever, is not so insoluble as it may appear from our analysis. First of all, it is
clear that promotion is the first, and the necessary, stage leading to protec-
tion: if this were not so, the only result of promotion would be the blue-sky
laws, well known in Latin America, in which case it could hardly be called
The Distinguishing Criteria of Institutions 217
promotion at all. Furthermore, there are many examples to show that the
international promotion of human rights leads to national protection. Nor
does the protection of human rights tend to preserve outdated social struc-
tures to the extent that one might think since, sooner or later, it shows up the
gaps and injustices and thus compels the legislature to intervene.
Should the distinction between the promotion and the protection of human
rights be abandoned? The answer seems to be no, at least at the international
level; for it is a realistic distinction which requires progress to be achieved by
stages, in line with the political, social and legal development of the States
belonging to the international community; it makes it possible to do justice to
certain bodies for the promotion of human rights, such as the United Nations
Commission on Human Rights, which are often-too often-judged by stan-
dards applicable to bodies for protection; and in any event it inevitably raises
the question whether there should not be two bodies corresponding to the
two tasks-promotion and protection-r whether it would be preferable for
the present, when international law is insufficiently developed, to have one
single body instead of the confusion of having two.
(b). Institutions for the promotion and institutions for the protection
of human rights
The criteria for promoting and protecting human rights, as applied to exist-
ing institutions, give rise to several observations.
i) National human rights institutions are usually institutions for protec-
tion: they are seldom institutions for the promotion of human rights. The
question therefore arises whether each state should not set up a competent
body for this purpose, responsible for preparing the reforms made necessary
in the field of human rights by social developments. Several countries have
already set up such a body for a major branch of law or for law in general (e.g.
the Law Reform Commission in the United Kingdom). National Commissions
on human rights, the establishment of which has often been called for, both at
the United Nations and within the OAS, and which could operate along lines
similar to the National Commissions for Unesco, could thus assume a role of
which they are worthy.
ii) Bodies for promoting and protecting human rights are just as necessary
at the international level; indeed, although the European Commission and
Court of Human Rights are bodies of protection par excellence, their action
had very rapidly to be supplemented by that of a body for promotion, the
Committee of Experts on Human Rights which, beginning as an ad hoc body,
has gradually become a permanent one.
iii) If an international body for the promotion of human rights is success-
ful, it cannot help but assume the task of protection. This development has
been particularly spectacular in the case of the Inter-American Commission
on Human Rights which, though set up in 1960 merely to promote human
rights, now performs almost exclusively the tasks of protection-to the point
218 Karel Vasak
that there is nothing, apart from the legal basis of its powers, to distinguish it
now from its European counterpart. 5 The same development, however, is
taking place within the United Nations Commission on Human Rights, espe-
cially since its 23rd session in 1967. It is not by chance that this development
coincided with the Commissions enlargement and the admission of represen-
tatives of several States which had only recently become independent.
iv) At the outset, that is, immediately after the Second World War, the
feature which distinguished a body for the promotion of human rights from a
body for their protection was the action that the latter took on individual
petitions; this presupposed that the procedure for such petitions was the only
one whereby human rights could be protected. The equation of a body for the
protection of human rights with a body competent to examine, as a court,
individual petitions was for a long time a vicious circle, in which those con-
cerned had almost voluntarily imprisoned themselves, and which they suc-
ceeded in breaking out of only in the late 1960s. It is now recognized that, in
order to protect human rights, it is not always necessary to put a State on
trial and then condemn it: the right of individual petition may become a right
to ordinary petition, or a mere source of information, without thereby lessen-
ing the effectiveness of the protection. The experience of various United
Nations bodies on petitions and that of the Inter-American Commission on
Human Rights tend to bear this out.?
2. THE FUNCTIONS CARRIED OUT BY HUMAN

RIGHTS INSTITUTIONS
Human rights institutions may perform one or more of the following five
functions which constitute as many component parts of a complete system for
the control of the observance of human rights: information, investigation,
conciliation, decision, and sanction. Indeed, human rights will be effectively
protected only when all these five functions are fully exercised at the interna-
tional level. An analysis of existing institutions for the protection of human
rights, based on these functional standards, shows up many gaps and also a
deplorable duplication of work.
(a). Information
There are many international organisations which compile information on the
position of human rights in various countries. The United Nations, for exam-
ple, publishes a Human Rights Yearbook based on such information.
Mention should also be made here of the periodic reports procedure, in-
tended to represent a common law generally applicable in the international
supervision of the execution of undertakings given by States in the field of
human rights. Moreover, this procedure, by reason of the consequences which
it might have, occupies a place halfway between the functions of information
and investigation. While the International Labour Organisation was the fore-
runner in the procedure, it was not until the late 196Os, that the UN suc-
ceeded in perfecting the system created by Resolution 624 B (XXII) of the

Economic and Social Council, whereas Unesco bases its approach on a spe-
cific provision of its constitution. Regional organizations such as the Council
of Europe (Article 57 of the European Convention on Human Rights) and the
Organization of American States (Resolution XXII of the Second Extraordi-
nary Inter-American Conference at Rio de Janeiro) have instituted similar
machinery. The danger of duplication is, however, particularly marked here.
(b). Investigation
There are fewer human rights institutions responsible for making investiga-
tions. These may be ad hoc bodies set up in specific circumstances (e.g. the
fact-finding mission of the United Nations General Assembly in Vietnam to
examine the situation of the Buddhists, the ad hoc group of the United
Nations Commision on Human Rights responsible for examining the situation
of prisoners and detainees in South Africa) or permanent bodies set up under
a convention or analogous instrument. The second type, which in the past
was exceptional, will now be able to become current practice within the
United Nations (the Committee on the Elimination of Racial Discrimination
set up under the Convention of the same name and the Human Rights Com-
mittee set up under the Covenant on Civil and Political Rights). There are
many such bodies in the International Labour Organisation (the Commission
of Inquiry set up under Article 28 of the IL0 Constitution, the Committee on
Freedom of Association of the Governing Body, the Fact-Finding and Concil-
iation Commission on Freedom of Association) and in two regional organiza-
tions (the Council of Europe and the Organization of American States, with
their Commissions of Human Rights).
The crucial point here of course is who can initiate the procedure. It is never
the investigating body itself (although in some cases it would be useful if it
were, if only to make the principle of the Rule of Law prevail in the field of
human rights) and seldom an individual, but usually Government. The proce-
dures employed by the various bodies of inquiry vary widely. Even though the
rulings of international human rights bodies are reached on the basis of deep-
seated conviction, these rulings nevertheless come at the end of procedures
which often leave much to be desired for their outcome to be generally con-
vincing. While it is not possible to unify the rules (generally deduced from
practice) relating to the admission of evidence, those rules could at least be
examined with regard, in particular, to the following aspects: the privileges
and immunities enjoyed by witnesses (cf. the incidents following the IL0
investigation in Chile);s the hearing of all parties concerned in the investiga-
tion; the intervention of third parties in the procedure, etc.
(c). Conciliation
Wary of the system of decisions as encroaching upon their sovereignty, States
are inclined to take refuge in the field of conciliation: all the institutions
220 Karel Vasak
responsible for making investigations are simultaneously offered the possibil-

ity of concluding their work by an attempt at conciliation. The intention is
praiseworthy insofar as it thus becomes possible to avoid judgments which
damage the prestige of a State in a field where the political element has not
lost all its prerogatives. The fact remains, however, that conciliation applied
to human rights is somewhat self-contradictory in that it suggests that, de-
spite their sacred and inviolable nature, human rights can be negotiated. It
would therefore be worthwhile to stress exactly what limits of conciliation
are consistent with respect for human rights, limits which the European
Commission of Human Rights, in particular, has been led to lay down each
time that it has approved the friendly settlement of a case brought before it.
(d). Decision
There are very few human rights institutions which at present have the
power to make decisions and, above all, judicial decisions. Only the European
Court of Human Rights and the Inter-American Court of Human Rights can
be mentioned in this respect, and even their jurisdiction is optional in the
sense that they require express acceptance by the States. Whenever the
Committee of Ministers of the Council of Europe rather than the Court has
been required to make a decision on the merits of a case in accordance with
Article 32 of the Rome Convention, it has not sought to divest itself of its
political character but has done just the opposite. Although formally a deci-
sion, the act by which it concludes the procedure (by a resolution and not a
decision) more often than not resembles a political settlement, far removed
from the judgment that the Court might have given in the same case.
It would be a mistake, however, to take a narrow legalistic view of this and
to under-estimate the value of institutions which do not make decisions but
limit themselves to mere recommendations. Depending on the action taken
to put it into effect, a recommendation may prove to be as important as a
decision, while being more acceptable to the State to which it is addressed.
(e). Sanctions
There are no human rights institutions empowered to impose sanctions. Even
the European Court of Human Rights can only award, under Article 50 of the
Convention, just satisfaction, i.e. generally compensation, to the victim of a
violation, and only subject to certain well-defined conditions. It is, therefore,
only within the political framework that violations of human rights can be the
subject of sanctions. There is no better proof that this situation is unsatis-
factory than the fruitless efforts to oblige South Africa to put an end to
policies that obviously run counter to every notion of human rights. In the
face of this, the jurist can only redouble his efforts to wield the only weapon
at his disposal: public opinion. For, in the last analysis, it is public opinion
that is able to impose the most serious sanctions on the recalcitrant State by
banishing it from the world community.
The Distinguishing Criteria of Institutions
3. THE SCOPE OF ACTIVITY OF HUMAN RIGHTS INSTITUTIONS

Action to promote and protect human rights is carried out on three levels-
national, regional and universal-by institutions whose competence is thus
geographically delimited.
i) The heaviest burden falls, and should fall, on the national institutions,
which are of course the most numerous. Although obviously not all can be
mentioned here, a few, because of their value as examples, are especially
noteworthy, as has been recognized by the United Nations: the French Conseil
d%tat, the Soviet Procuratura, the Scandinavian Ombudsman, and the Jap-
anese Bureau of Civil Liberties. Similarly, certain procedures have become
widespread because of their reputation as effective safeguards: the English
habeas corpus, the Mexican amparo, and the Brazilian mandato de seguranza.
ii) Formerly regarded as an interference in the relations between the United
Nations and its Member States, the regional institutions now enjoy the
status which their character deserves, though it is unlikely that they will be
integrated into a universal system in the near future. Mention may be made
here of the bodies of the European Convention on Human Rights, those of
the European Social Charter, andthe Inter-American Commission on Human
Rights. In this context, it would be advisable to re-examine favourably the
frequently repeated proposals for the establishment of regional commissions
on human rights where they do not yet exist.
iii) There are already a number of universal institutions within the United
Nations (Commission on Human Rights, with its Sub-Commission on Pre-
vention of Discrimination and Protection of Minorities, Commission on the
Status of Women, the Committee on the Elimination of Racial Discrimination
set up under the terms of the 1965 Convention, Human Rights Committee
etc.), within the International Labour Organisation (bodies responsible for
keeping under review the application of International Labour Conventions
and Recommendations, and those for examining complaints and claims refer-
ring to ratified conventions or to freedom of association), and within Unesco
(Conciliation and Good Offices Commission set up under the Convention against
Discrimination in Education and the Committee on Conventions and
Recommendations).
Because of this proliferation of institutions, it is all the more essential to
set up a body capable of dealing with human rights on a world-wide scale,
without reference to the level-national, regional or universal-at which
these rights operate. One may sense that this is the constructive role to be
played by a United Nations High Commissioner for Human Rights, the cre-
ation of which office has been proposed following the precedent relating to
the protection of refugees. The idea of a United Nations High Commissioner
for Human Rights l2 has been the subject of frequently impassioned discus-
sions. Insofar as the office of the United Nations High Commissioner was to
be a body for the protection of human rights and consequently a means of
222 Karel Vasak
combating violations of human rights, the project seems to have fallen through,
at least for the time being. Moreover, it must be recognized that the applica-
tion of the Convention on Elimination of Racial Discrimination, the development
of procedures in accordance with ECOSOC Resolutions 1235 and 1503 and
the entry into force of the Covenants on Human Rights, as imperfect as all
these factors may be in certain regards, remove a great deal of substance
from the project to appoint a High Commissioner for Human Rights.
At the same time, however, the development of the world-wide character
of human rights (especially as regards human rights norms), accompanied by
tendencies towards dispersion (especially as regards the implementation of
those norms), provides a new, albeit different, justification for the project to
appoint a High Commissioner. What is now needed is probably not so much a
man as an institution (a Commissioners Office rather than a Commissioner),
the dual function of which should be: a) to co-ordinate all human rights
machinery, bodies and procedures operating both at the world level (United
Nations, on the one hand, specialized agencies on the other) and at the
regional level, to increase this effectiveness and avoid the duplication of work
and procedures; b) to give thought to the reforms to be proposed, at national
and world levels, and thereby to give a real object and hence new impetus to
the human rights consultative services existing at the United Nations and
elsewhere.
4, THE TECHNIQUES USED BY INSTITUTIONS FOR THE

PROTECTION OF HUMAN RIGHTS
When their task is to protect human rights, international human rights institu-
tions use various techniques, some of which emphasize the specificity of
international human rights law. These are: techniques for the political super-
vision of the observance of human rights; techniques of supervision by means
of reports; and, lastly, techniques of supervision by means of complaints,
petitions or communications, brought by States or individuals.
(a). Political supervision

What is involved here is machinery which, not having been specifically set up
for the purpose of supervising the observance of human rights by Member
States of the international community, may nevertheless be used to that end,
especially when it forms part of the machinery of organizations whose princi-
ple objectives include the protection of human rights. Most of the competent
bodies then base their judgments on the constitution of the organization or
sometimes even on texts whose binding character is not universally recog-
nized, such as the Universal Declaration or the American Declaration of
Human Rights.
At the United Nations the General Assembly may take action in the form
of recommendations to facilitate the enjoyment of human rights and funda-
mental freedoms, and it has not failed to do so on several occasions, particu-

larly in relation to the human rights situation in southern Africa. In matters
of colonialism, the General Assembly has used human rights as a means of
fighting for the right to self-determination, recognized as the first and most
indispensable of human rights. Thus the Committee of Twenty-Five, set up
on 27 November 1961, has the task of examining the application of the Decla-
ration on the Granting of Independence to Colonial Countries and Peoples,
adopted on 14 December 1960.
Generally speaking, the regional organizations provide for the observance
of human rights in their constitutions, as a result of which any State that
violates those rights can be expelled. This possibility is expressly provided
for by Article 8, combined with Article 3, of the Statute of the Council of
Europe. When the Greek Government that came into power after the 1967
coup dktat withdrew, legally speaking, from the Council of Europe in De-
cember 1969, what it was in fact doing was forestalling the inevitable out-
come of the procedure aimed at expelling it from the Organization.
Similarly, the Organization of American States includes human rights among
its principles (Article 5 (j)) and it is in the Bogota Charter, which forms the
constitution of the OAS, that the relations between democracy and human
rights are emphasized with particular clarity (Preamble, Article 5 d). How-
ever, no sanction is expressly provided for in the event of human rights being
violated, since provision for the expulsion of a State in such circumstances
was not included in the Bogota Charter. Difficulties consequently arose in
1962 in connection with Cuba which was not legally expelled from the OAS
but which was considered to have voluntarily set itself outside the inter-
American system (Resolution VI of the 8th meeting of consultation of Minis-
ters of Foreign Affairs at Punta-del-Este, January 1962). The Inter-American
Commission on Human Rights nevertheless continued to investigate the po-
sition of human rights in Cuba, considering that the expulsion measure had
been directed against the present government of Cuba, but not the Cuban
State. l3
The Organization of African Unity also reaffirmed in its constitutional
Charter of Addis Ababa the acceptance by its Member States of the Univer-
sal Declaration of Human Rights (Preamble), for which there was to be due
regard in intentional co-operation (Article II). Although human rights are
included among the objectives of the Organization (Article II), they are not
listed among its principles (Article III). Moreover, it is to be noted that,
insofar as human rights come under the domestic jurisdiction of states, it
could even be maintained that the principle of non-interference in the domes-
tic affairs of States contained in Article III of the Addis Ababa Charter very
seriously limits the implementation of the human rights objective men-
tioned in Article II. The Addis Ababa Charter is thus not a model of clarity
nor does it reveal any marked determination with regard at least to the use of
the political machinery of the OAU for the purpose of ensuring respect for
224 Karel Vasak
human rights by Member States. However, in recent years the subsidiary

bodies of the OAU have taken measures in certain cases involving violations
of human rights. Moreover, in 1979 the process of drafting an African Char-
ter of Human and Peoples Rights was begun within the OAU framework.
In the case of the League of Arab States, the relevant constitutional texts
contain no mention of human rights. However, the Council of the League of
Arab States set up, on 3 September 1968, by its Resolution 24/43, a Perma-
nent Arab Commission on Human Rights which, as a mere body for the
promotion of human rights, has, inter alia, drawn up a Declaration of the
Rights of Arab Citizens.
(b). Supervision by means of reports

It could be said that what is involved here is a common law technique em-
ployed by international human rights institutions to supervise the observance
of human rights by Member States of international organizations or parties to
the conventions on human rights. There are a large number of texts provid-
ing for a procedure consisting in the submission of reports, which are either
optional (system of periodic reports to the United Nations, for instance) or
compulsory (when prescribed by conventions on human rights). The outstand-
ing example here is provided by the International Labour Organisation which
has so developed this technique that it is now of unquestionable effectiveness.14
The most important problem arising here is that of the action taken on the
reports submitted by States. In some cases, as for instance in that of the
European Convention on Human Rights (Article 571, the basic text may
contain no mention of the action to be taken on reports. But, as a general
rule, the reports are examined by specialized bodies composed of indepen-
dent experts (for instance, by the IL0 Committee of Experts on the Applica-
tion of Conventions and Recommendations). The examination procedure, often
highly complex and involving several bodies, results in the formulation of
observations or recommendations which are addressed to all Member States
or to a particular State designated by name.
Comparison of the different methods involving the technique of supervi-
sion by means of reports reveals that this technique is particularly effective
when:
-the reports are submitted at relatively frequent intervals;

-they are submitted in accordance with a plan which takes the form of a
detailed questionnaire;
-such reports are examined by an independent and impartial body, the
members of which are appointed for a sufficiently long period;
-that body is not obliged to confine itself solely to reports and may seek to
clarify the information they contain by reference to appropriate publications;
-such reports are transmitted, for comments, to private, national or interna-
tional organizations;
-they may lead to the adoption of recommendations the effectiveness of

which will depend on the extent to which they are able to be of a specific
rather than a general character;
-the entire procedure, or at least the final part of the procedure (final
report accompanied by recommendations), is made public.
(c). Supervision by means of petitions or complaintd5

This technique, far more developed than the previous one, takes various
forms according to whether the petition is able to be brought solely by States
or also by private individuals, whether or not they are victims of an alleged
violation of human rights.
The body with responsibility for the procedure instituted by the lodging of
the complaint may be of an administrative character (as was the case for the
petitions of members of minorities, considered first of all by the minorities
section of the Secretariat of the League of Nations), political (as is the case
for all the United Nations bodies which have to deal with petitions relating to
trust or non-autonomous territories), quasi-judicial (for instance, the Inter-
American Commission on Human Rights, perhaps so under its regular
procedure, but certainly so during the special procedure for examining the
individual complaints regarding the violation of human rights) or judicial (for
instance, the European Commission of Human Rights when considering the
admissibility of petitions). Several bodies of different kinds may be involved
or even a single body, in which case it will change in nature as the procedure
develops (the European Commission of Human Rights). The procedure may
result in the drawing up of a report (as by the Human Rights Committee of
the Covenant on Civil and Political Rights in the case of a communication by
one State against another State, under Article 41), the adoption of a recom-
mendation (as by the Committee of Ministers of the Council of Europe in
accordance with the provisions of the European Social Charter) or the deliv-
ering of a decision (as by the Committee of Ministers under Article 32 of the
European Convention on Human Rights) or a judgment (by the European
Court of Human Rights).
There is scarcely any doubt that this technique, particularly insofar as it
involves the right of individual appeal, constitutes the corner-stone of the
entire machinery for the implementation of human rights. It has been ef-
fectively used at the United Nations by the competent institutions for
colonial and non-autonomous territories to attain political objectives (and
primarily respect for the right to self-determination). Within the Organiza-
tion of American States, while the procedure is instituted by individuals, it
has a collective bearing: the complaint addressed to the Inter-American
Commission on Human Rights changes nature in the course of the proce-
dure and becomes a source of information as to the state of human rights in
the country concerned. At the United Nations the procedure for the ex-
amination of individual communications in pursuance of Resolution 1503
226 Karel Vasak
of the Economic and Social Council is developing largely along the same
lines.
It is, however, primarily in the context of the Council of Europe that this
technique constitutes an essential feature of a true European human rights
law; although limited to one region, this technique, as provided for by the
European Convention on Human Rights, is an asset to the entire interna-
tional community.
5. THE LEGAL NATURE OF THE INSTITUTION

Human rights institutions may be either governmental, and consequently
governed by international law, or non-governmental, in which case they are
legal entities, subject to the laws of a Member State of the international
community.
Governmental human rights institutions are the fundamental subject of
this treatise. Established either by an existing international organization, or
under a specific human rights treaty, such governmental institutions differ
from each other in respect, particularly, of the independent or non-independent
character of their members. Some of them are, by virtue of their statutes,
composed of governments, in which case the representatives of those gov-
ernments are provided with instructions which it is impossible to divest of all
political considerations (United Nations Commission on Human Rights, etc.).
Others are composed of members appointed in an individual capacity, as
experts (e.g. the United Nations Sub-Commission on Prevention of Discrim-
ination and Protection of Minorities, the Committee on the Elimination of
Racial Discrimination) or as persons qualified to exercise judicial or quasi-
judicial functions (European Commission and Court of Human Rights, IL0
tions, and the IL0 Commission of Inquiry set up to deal with complaints
submitted under the Constitution of the ILO, etc.). Intermediate situations
may even arise, as in the case of the ad hoc committees of the United Nations
Commission on Human Rights whose members are chosen, in an individual
capacity, among the representatives of Governments on the Commission.
Non-governmental institutions are private, voluntary organizations which,
by definition, purport to be independent of governments. Composed of indi-
viduals or associations of individuals, they have played and continue to play a
considerable role in the field of human rights. It was essentially their action
which resulted in the establishment, under the terms of the Charter of the
United Nations, of a specific human rights body, the Commission on Human
Rights; and it is to their permanent credit that the Universal Declaration of
Human Rights originated with them. Acting above all as bodies for the
promotion of human rights, they also contribute to their protection by iden-
tifying, through using their own methods (on-the-spot investigations, the
sending of observers selected from the judiciary to political trials, etc.),
violations of human rights, by notifying international bodies for the protec-

tion of human rights of such violations (availing themselves, for instance, of
the right of petition recognized in Article 25 of the European Convention on
Human Rights or similar provisions in other human rights treaties) or by
assistance, either materially or in the form of legal assistance, to individuals
who are victims of violations of human rights.
The international organizations, and particularly those with specific re-
sponsibilities in the matter of human rights, have defined, in more or less
precise terms, their relations with non-governmental institutions. Thus, under
Article 71 of the San Francisco Charter, legal provision for consultation
with non-governmental organizations (NGOs) has been established by the
United Nations. Other international organizations have to a large extent
taken their cue from this.
There are many NGOs concerned with human rights: a systematic study of
such organizations from the political, sociological and legal points of view still
needs to be carried out. l6 Among the most active, the following deserve to be
mentioned: the International Association of Democratic Lawyers, the Inter-
national Commission of Jurists, Amnesty International, the International
League of Human Rights and the International Federation of Human Rights,
etc. One NGO deserves to be mentioned separately, the International Com-
mittee of the Red Cross. l7 This is a Swiss private law organization, composed
exclusively of Swiss citizens, but which has been invested, by custom and by
express provisions of the 1949 Geneva Conventions and the 1977 Protocols
thereto, with important humanitarian functions.
NOTES
1. See Rene Cassin,Preface to La Commission interamlricaine des droits de lhomme,
Karel Vasak, Libraire g&&ale de droit et de jurisprudence, 1968.
2. See for instance Art. 1, para. 3, of the Charter of the United Nations: The purposes
of the United Nations are:. .3. To achieve international co-operation. in promoting and
encouraging respect for human rights and for fundamental freedoms for all. . (Emphasis
added.) The efforts made, when the Charter was being prepared, to pass from the stage of
the promotion to that of the protection of human rights were unsuccessful.
3. The two tasks of promoting and protecting human rights were the focus of discus-
sions in 1960 when the status of the Inter-American Commission on Human Rights, set up
in August 1959, was to be determined. It seems to have been at that time that, within the
Council of the OAS, the grounds for, and the consequences of, the distinction were most
clearly set forth.
4. Cf. F. Przetacznik: Lattitude des Etats socialistes a legard de la protection interna-
tionale des droits de lhomme, RDHIHRJ, Vol. VII, No. 1 (1974), p. 175.
5. See Karel Vasak, La Commission interamdricaine des droits de lhomme, op. cit., in
particular p. 139 et seq.
6. See J.B. Marie, La Commission des droits de lhomme des Nations Unies, Paris,
Pedone, 1975, p. 233 et seq.
7. It is highly profitable to consult in this connection Glenda da Fonseca, How to File
228 Karel Vasak
Complaints of Human Rights Violations-A Practical Guide to Intergovernmental Proce-

dures, Geneva, The World Council of Churches, 152 pages.
8. See the report of the Fact-Finding and Conciliation Commission on Freedom of
Association: The Trade Union Situation in Chile, Geneva, ILO, 1975.
9. It appears that, in addition to the necessary respect for human rights as provided for
by the European Convention, the Commission, when it has to close the procedure by
reporting a friendly settlement, seeks above all to ascertain that the alleged victim, i.e.
generally the petitioner himself, has been completely free to accept or refuse the settlement.
10. In the American Convention on Human Rights the Commission expresses its opinion
if the case has not been submitted to the Court. But the powers thus attributed to the
Commission are very different from the powers of a genuine court, as emerges from Article
51 of the Convention:
1. If, within a period of three months from the date of the transmittal of the report of the
Commission to the States concerned, the matter has not been either settled or submitted by
the Commission or by the State concerned to the Court and its jurisdiction accepted, the
Commission may, by the vote of an absolute majority of its members, set forth its opinion
and conclusions concerning the question submitted for its consideration.
2. Where appropriate, the Commission shall make pertinent recommendations and shall
prescribe a period within which the State is to take measures that are incumbent upon it to
remedy the situation examined.
3. When the prescribed period has expired, the Commission shall decide by the vote of an
absolute majority of its members whether the State has taken adequate measures and
whether to publish its report.
The pressure that the Commission is thus brought gradually to exercise upon the State
concerned by the series of decisions that it makes, and which scarcely resemble judicial
decisions, seems typical of a political body. If this Article 51 is compared with Article 52 of
the European Convention, the similarity of the solutions adopted will be seen, despite the
difference in respect of the bodies required to act.
11. It was the suspension of the Treaty of Association between Greece and the European
Commission (and hence the suppression of a number of economic advantages), decided by
the Council of Ministers of the European Communities, which constituted the true sanction
to emerge from the decision of the Committee of Ministers of the Council of Europe noting
that the Greece of the Colonels had violated numerous provisions of the European Conven-
tion on Human Rights, although these two decisions: a) were each taken in a different legal
framework; b) were not based on the same human rights provisions; c) apparently did not
follow on from each other in time.
12. See for instance, G. Mansuy, Un mediateur des Nations Unies pour les droits de
lhomme, RDHIHRJ, Vol. VI, No. 2, 1973, p. 235.
13. The entire legal interpretation may seem questionable, from the expulsion (which is
claimed not to be such, whereas the Inter-American Commission holds the opposite view), up
to the decision of the Commission to continue to exercise its powers with regard to Cuba (for
the entire Cuban question, see K. Vasak, La Commission interamkicaine des droits de
lhomme, op. cit., p. 130 et seq.).
14. In this connection, see especially the work of N. Valticos (e.g. Droit interructicmal du tra-
vail, Paris, Dalloz, 1970and Supplement, 1973)and that of E.A. Landy, The Effectiveness of
International Superuision-Thirty Years of IL0 Expenkce, Dobbs Ferry, N.Y., Oceana,1966.
15. The terminology is uncertain since the same individual act can be described as a
petition, application , denunciation or communication (see below, where the various
categories of individual petitions are analyzed).
16. See L.S. Wiseberg and H.M. Scoble, Human Rights NGOs: Notes towards Compar-
ative Analysis, in RDHIHRJ, Vol. IX, No. 4, 1976, and other references in the Bibliogra-
phy of this book.
17. See H. Knitel, Les dblkgations du Comitd international de la Croix-Rouge, Geneva,
1967, 134 pages.
Sub-Part I:
Universal Institutions
IO The Principal Institutions
and Other Bodies Founded
Under the Charter
Egon Schwelb and Philip Alston
Among the purposes of the United Nations according to its Charter is the
achievement of international co-operation in promoting and encouraging
respect for human rights and for fundamental freedoms for all without dis-
tinction as to race, sex, language or religion (Article l(3)). All of the princi-
pal and many of the subsidiary organs of the United Nations have the task of
acting on human rights matters (Article (1) and (2)). The first part of the
present chapter focuses on the role played by each of these organs and the
second part on the procedures and practices which they have adopted in
human rights matters. The following chapter, 11, is directly complementary
and deals with the institutions and procedures which have been established
under specific United Nations human rights conventions, such as the Inter-
national Covenants on Human Rights.
The present survey of thirty-five years of United Nations action, between
1945 and 1980, is inevitably incomplete and wherever possible relevant doc-
umentary references or key resolutions have been noted either in the text or
in the footnotes to enable the reader to pursue the matter further. Before
commencing our survey of the major United Nations human rights organs it
is appropriate to note the allocation of functions provided for by the Charter.
The main responsibility for the discharge of the functions of the Organiza-
tion in the promotion of respect for and observance of human rights is vested
in the General Assembly and, under its authority, in the Economic and Social
Council (Article 60). The Security Council was repeatedly called upon to
investigate disputes or situations arising out of claimed human rights viola-
tions which might lead to international friction (Article 34). To encourage
respect for human rights and fundamental freedoms is one of the basic objec-
tives of the trusteeship system. It follows that action on human rights comes
also within the functions and powers of the TmLsteeship Council (Articles 76
(c) and 87). The International Court of Justice has had occasion to make
important pronouncements on questions of human rights, both when acting in
contentious cases and when rendering advisory opinions. The Secretary-General
acts in that capacity in all meetings of the principal organs (with the excep-
232 Egon Schwelb and Philip Alston
tion of the Court) and, as a consequence, the Secretariat has had to perform
important functions in the human rights field (Articles 97to 99 of the Charter).
1. THE PRINCIPAL ORGANS OF THE UNITED NATIONS AND

THE SUBSIDIARY ORGANS ACTIVE IN HUMAN RIGHTS MAT-
TERS ESTABLISHED UNDER THE CHARTER
(a). General Assembly

The General Assembly consists of all the Member States of the UN (Art. 9),
each of which has one vote (Art. 9). In December 1979, UN membership was
151 States. The General Assembly meets in regular annual sessions and in
special sessions as required (Art. 20). By December 1980, eleven special
sessions and seven emergency special sessions had been held. The Assem-
bly adopts its own rules of procedure (Art. 21) which, since their enactment
in 1947 (G.A. res. 173(11)), have frequently been amended.
(i) THEM.~INCOMMITTEES~FTHEGENEF~ALASSEMBLY
Questions before the General Assembly are either considered directly by the
Assembly in plenary meetings or are considered by the plenary on the basis
of a report from one of the Assemblys committees. All Member States are
represented on the seven Main Committees. These deal with: disarmament
and related matters (First Committee); economic and financial matters (Sec-
ond Committee); social, humanitarian and cultural matters (Third Commit-
tee); decolonisation matters (Fourth Committee); administrative and budgetary
matters (Fifth Committee); and legal matters (Sixth Committee). There is
also a Special Political Committee. Questions concerning human rights are
usually referred to the Third Committee. However, other Main Committees,
notably the Special Political Committee and the First, Fourth and Sixth
Committees also deal with subjects where human right issues play an impor-
tant role.
(ii) VOTINGINTHEGENERALASSEMBLY
The Charter (Art. 18) provides that decisions of the Assembly on important
questions shall be made by a two-thirds majority of the members present
and voting and that decisions on other questions shall be made by a (simple)
majority of those present and voting. The list of important questions con-
tained in the Charter includes those concerning the maintenance of interna-
tional peace and security, admission of new Members, expulsion of Members
etc., but it does not include human rights questions as such. However, by a
simple majority, the Assembly may determine additional categories of ques-
tions to be decided by a two-thirds majority (Art. 18(3)). No general decision
to add the category of human rights questions to the list of important ques-
tions has ever been made. But since Article 18(Z)does not appear to contain
Principal Institutions Founded Under the Charter 233
an exhaustive list of such questions, there are cases on record in which the
General Assembly decided to require a two-thirds majority for the adoption
of certain decisions on human rights matters. Thus, when the draft Conven-
tion on the Political Rights of Women, recommended for adoption by the
Third Committee, was being considered in a plenary meeting in 1952, a
representative claimed that the territorial application clause (the colonial
clause) of the draft required a two-thirds majority for adoption. The Presi-
dent ruled that the draft resolution and the draft convention attached to it
constituted a question of importance and therefore required a two-thirds
majority. There was no objection to this ruling and, in the event, the clause,
which received a simple majority only, was held not to have been adopted.
The draft convention was adopted without the colonial clause. By contrast,
in January 1957, the Assembly approved by simple majority the inclusion of
such a clause in another human rights convention, the draft Convention on
the Nationality of Married Women. The question whether the clause, or the
draft convention as a whole, might require a two-thirds majority for adop-
tion, was not raised at all.
In United Nations jurisprudence the right of peoples and nations to per-
manent sovereignty over their natural wealth and resources is a question
which comes within the overall field of human rights. This follows from a
series of resolutions and from Article 1 of both International Covenants on
Human Rights. When the General Assembly considered and eventually adopted
the Declaration on Permanent Sovereignty over Natural Resources in 1962,
it decided that the draft declaration was an important question within the
meaning of Article 18(Z) of the Charter.4
Questions relating to the operation of the trusteeship system are expressly
listed in Article 18(Z) among the important questions. Questions relating to
non-self-governing territories do not appear in that list. It has therefore been
argued that matters of anti-colonialism and self-determination, while undoubt-
edly important, are not important questions in the technical sense of the
purposes of Article 18(Z). In several instances the General Assembly acted on
this interpretation, while in others it decided that the concrete question
which it had before it of the non-self-governing territory was an important
question. Usually the decision for the one or the other interpretation has
been made by a very narrow majority.5
It should be added that the rules about voting, described above, apply only
to proceedings of plenary meetings of the General Assembly. Decisions of
committees, including the Main Committees, are made by a (simple) majority
of the members present and voting. In both the plenary and the Main Com-
mittees the rule applies that when a proposal has been adopted or rejected, it
may not be reconsidered at the same session unless the Assembly (or the
Committee respectively) so decides by a two-thirds majority.
The experience of past sessions of the General Assembly shows that, in
matters of human rights, decisions have usually been taken by votes in which
a two-thirds majority was actually obtained, and in most eases considerably

exceeded, without the question of the importance of the item and the
majority required being raised. Many decisions in matters of human rights
have been taken without dissenting votes.
(iii) THEF~N~TIO~~ANDPOWERS~FTHEGENERALASSEMBLY~~H~MAN
RIGHTSMATTERS
Under Article 13(l)(b) of the Charter, the General Assembly has two princi-
pal obligations in matters of human rights: to initiate studies; and to make
recommendations for the purpose of assisting in the realization of human
rights and fundamental freedoms for all without distinction as to race, sex,
language or religion. In the initiation of studies the Assembly has requested
studies from: the Economic and Social Council and its subsidiary organs; the
Secretary-General; specialized agencies; other bodies, including its own sub-
sidiary organs; several bodies jointly; and Member States. The Assembly
also receives and considers reports from the Security Council and from other
organs of the UN. In particular, the annual report of the Economic and Social
Council is the occasion for the Assemblys initiation of additional investiga-
tions and studies, and for taking action of various kinds.
The recommendations which the General Assembly makes on matters of
human rights are technically not legally binding on States. However, in
evaluating the authority of recommendations of the Assembly one has to bear
in mind that, in Articles 55 and 56 of the Charter, all Members have pledged
themselves to take joint and separate action in co-operation with the Organiza-
tion, to promote universal respect for, and observance of, human rights and
fundamental freedoms.
Anticipating what will be said below about the functions and powers of the
Economic and Social Council, it should be mentioned here that, under Arti-
cle 62(3) of the Charter, the Council may prepare draft conventions for
submission to the General Assembly with respect to matters falling within
its competence. Over the years, the Assembly has, both on its own initiative
and on the recommendation of the Council and other organs, adopted and
opened for signature and ratification an impressive number of international
treaties (conventions) dealing with human rights questions. These include
both instruments of a comprehensive character, such as the International
Convenants on Human Rights, and instruments limited to specific prob-
lems, such as genocide, various questions of the status of women, the elimi-
nation of racial discrimination, and others. An original contribution of the
UN General Assembly has been the proclamation of solemn, standard-setting
Declarations in matters of human rights, adopted by Assembly resolution
and not given the form of an international treaty. These include the Univer-
sal Declaration of Human Rights of 1948 and a variety of others which are
considered below.
(b). Subsidiary Organs of the General Assembly
(i) GENERALSURVEY
The General Assembly may establish such subsidiary organs as it deems

necessary for the performance of its functions (Art. 22). Many of the innu-
merable subsidiary organs which the Assembly has created under this provi-
sion have been, or are, either largely or exclusively concerned with human
rights issues. However, they vary considerably in type and importance. Some
are of an ad hoc character, others are more permanent.
By way of example, mention may briefly be made of some of these organs.
Among the institutions which have been established are the International
Childrens Emergency Fund (UNICEF) created in 1947, the Relief and Works
Agency for Palestine Refugees in the Near East (UNRWA) created in 1949,
and the Office of the High Commissioner for Refugees (UNHCR) which was
established in 1951. The Assembly has also appointed commissions to deal
with a wide range of issues. They include for example: an Ad Hoc Commis-
sion to deal with the question of prisoners of war from the Second World War
(1950); a Commission to investigate whether conditions in the Federal Re-
public of Germany, in Berlin and in what was then called the Soviet Zone of
Germany were such that genuinely free and secret elections could be held
(1950); a Good Offices Commission to deal with the question of the treatment
of people of Indian origin in South Africa (1952); a Commission to study the
racial question in South Africa (1952); and a commission of inquiry to investi-
gate reported atrocities in Mozambique (1973).
In the following pages several of the more important subsidiary organs
established by the General Assembly in the field of human rights will be
considered in depth.
(ii) THE SPECIALCOMMITTEE AGAINSTAPARTHEID
The procedures adopted and the measures applied by the UN in the struggle
against apartheid are examined in a subsequent part of this Chapter. In the
present context it is sufficient to note the background which led the General
Assembly to establish the Special Committee Against Apartheid.
The problem of human rights and discrimination in South Africa has occu-
pied the UN since the very first session of the General Assembly, in 1946
(G.A. res. 44(I)). The Organizations concern was initially limited to the
question of the treatment of Indians (or people of Indian and Pakistani origin)
in South Africa, but in 1952 was extended to cover the whole question of race
conflict resulting from the policies of apartheid (G.A. res. 616A and B(VI1)).
In that year the General Assembly established a Commission to study the
racial situation in the Union of South Africa in the light of the Purposes and
Principles of the Charter, with due regard to the provision of Article 2,
paragraph 7 [the domestic jurisdiction clause] as well as the human rights
provisions of the Charter (G.A. res. 616A(VII)). For each of the next three
years the Commission reported to the Assembly.7 The Assembly found that
the racial policies of the Government of South Africa and their consequences
were contrary to the Charter, a finding that was to be repeated on many later
occasions with increasing emphasis.
In 1962, the General Assembly established a permanent organ, the Special
Committee on the policies of apartheid of the Government of South Africa
with the mandate to keep the racial policies of that Government under review
and to report to the Assembly or to the Security Council or to both from time
to time (G.A. res. 1761(XVII) of 1962). In 1970, the Committee was renamed
the Special Committee on Apartheid and in 1974 it became the Special Com-
mittee Against Apartheid (G.A. res. 3324(Xx1X)). In 1965 the General As-
sembly decided to enlarge the eleven-member Special Committee to include
six States from amongst those of major importance in world trade and having
primary responsibility under the Charter for the maintenance of interna-
tional security, i.e. permanent members of the Security Council. But of those
eligible, only the USSR indicated its willingness to serve on the Committee.
In 1966, the Assembly deplored the refusal of South Africas main trading
partners, including three permanent members of the Security Council, to join
the Committee (G.A. res. 2202A (XXI)). Of the 18 members of the Commit-
tee in 1980 none was a permanent member of the Security Council.
The mandate of the Special Committee, its work and the response of the
General Assembly to its reports and recommendations are described later in
this Chapter.
(iii) THESPECIALCOMMITTEEONTHESITUATIONWITHREGARDTOTHE
IMPLEMENTATIONOFTHEDECLARATIONONTHEGRANTINGOF
INDEPENDENCETOCOLONIALCOUNTRIESANDPEOPLES
On 14 December 1960 the General Assembly adopted a historic resolution

(1514(XV)) by which it solemnly proclaimed the necessity of bringing to a
speedy and unconditional end colonialism in all its forms and manifestations.
In the preamble to the Declaration on the Granting of Independence to Colo-
nial Peoples and Countries the Assembly emphasized the importance of human
rights and expressed the belief that the process of liberation is irresistible
and irreversible and that, in order to avoid serious crises, an end must be put
to colonialism and all practices of segregation and discrimination associated
therewith. The Declaration declared that all peoples have the right to
self-determination; by virtue of that right they freely determine their politi-
cal status and freely pursue their economic, social and cultural development.
It further rebutted traditional colonialist arguments by stating that inade-
quacy of political, economic, social or educational preparedness should never
serve as a pretext for delaying independence.
In 1961, the Assembly established international machinery to implement
the Declaration in the form of a Special Committee on the Situation with
regard to the Implementation of the Declaration of Granting the Indepen-

dence to Colonial Countries and Peoples (G.A. res. 1654 (XVI). The Special
Committees membership has been enlarged from 17 in 1961 to 24 in 1962 and
to 25 in 1980 (G.A. decision 34/310).
The mandate of the Special Committee has been revised from time to time
by the Assembly. Thus in 1979 the Special Committee was requested: to
formulate specific proposals for the elimination of the remaining manifesta-
tions of colonialism; to make concrete suggestions which could assist the
Security Council in considering appropriate measures under the Charter
with regard to developments in colonial Territories that are likely to threaten
international peace and security; to continue to examine the compliance of
Member States with the Declaration and with other relevant resolutions on
decolonization; to continue to pay particular attention to the small Territo-
ries; and to take all necessary steps to enlist world-wide support in the
achievement of the Declarations objectives (G.A. res. 34194).
Procedures followed by the Special Committee include the collection of
relevant information, the preparation of reports, the receipt of petitions and
the hearing of petitioners, and undertaking visiting missions to specific Ter-
ritories. To assist in these tasks the Special Committee has established a
comprehensive machinery of subordinate organs. In keeping with decisions
of the General Assembly, representatives of those national liberation move-
ments which are recognized by the Organization of African Unity participate
as observers, i.e. without a vote, in the relevant proceedings of the Assem-
blys Fourth Committee.
There has been and continues to be an intensive relationship between the
Special Committee and other UN organs. Thus, in the resolution establishing
the Special Committee, the Assembly requested one of the principal organs
of the UN, the Trusteeship Council, to assist the Special Committee in its
work. In accordance with the Assemblys request the Special Committee has
apprised the Security Council of a number of developments which may threaten
international peace and security, including the situations in Southern Rhode-
sia (Zimbabwe), South West Africa (Namibia), Aden and the Territories
formerly under Portuguese control.
Although the Commission on Human Rights and the Special Committee
have not worked closely together, the latter was instrumental in the Com-
missions adoption in 1970 of a new procedure for the consideration of com-
munications relating to gross violations.
The extent of co-operation by the specialized agencies with the work of the
Special Committee has varied from agency to agency. In 1967 the Assembly
emphasized the importance of all UN-related international organizations ex-
tending such co-operation (G.A. res. 2311(Xx11)). However, in subsequent
years certain difficulties arose between the General Assembly and the Spe-
cial Committee on the one side and the International Bank for Reconstruction
and Development (World Bank) and the International Monetary Fund on the
other.g Despite extensive discussions the issue has not been resolved to the
Assemblys satisfaction. Its 1979 resolution, in which it expressed regret that
the IBRD and the IMF had not taken the necessary steps to help implement
the Declaration and related resolutions and deplored the practices of those
agencies which continued co-operation with the colonialist, racist minority
regime in South Africa, is typical of many earlier ones (G.A. res. 34/42).
Another focus of particular concern for the Committee has been the activi-
ties of foreign economic interests operating in Namibia, former Southern
Rhodesia, and South Africa. The Assembly has declared that the collabora-
tion of these interests with the relevant regimes is detrimental to the inter-
ests of the oppressed peoples and impedes the implementation of the Declaration.
It has also condemned all those countries, some of which have been epecific-
ally named, which continue to maintain political, diplomatic, economic, trade,
military, nuclear, and other relations with the racist regimes (G.A. res. 34/41
of 1979).
The Special Committee has submitted a report to the General Assembly
each year since 1963. Examples of decolonization issues which have recently
been considered by the Assembly include the situations in Western Sahara,
Belize, and East Timor and in Territories administered by Australia, New
Zealand, the United Kingdom and the United States. Among the Territories
administered by the latter are Guam, American Samoa and the US Virgin
Islands.
Thus, in institutional terms, the Special Committee has established the
most elaborate machinery of all the Assemblys subsidiary organs and has
conducted activities of unparalleled scope and comprehensiveness. Some no-
table characteristics of the approach adopted by the Special Committee are:
its emphasis on the economic aspects of its task; the extent to which it
investigates the situation in specific countries; and the degree of sophistica-
tion of its petition procedures. l1 The large number of former dependent terri-
tories which have become independent in recent years is one testimony to the
important and wide-ranging impact of the 1960 Declaration.
(iv) UNITED NATIONS COUNCIL FOR NAMIBIA
In 1967 the UN Council for South West Africa was established by the Gen-
eral Assembly (res. 2248(S-V)). The following year it was renamed the UN
Council for Namibia. Its primary function is to administer Namibia until
independence, with the maximum possible participation of the Territorys
people. The Council consists of 25 Member States and its executive and
administrative tasks are performed by the UN Commissioner for Namibia.
The Council works through a Steering Committee and three Standing
Committees.
In 1979 the General Assembly called upon the Council, in discharging its
responsibilities, to denounce all fraudulent constitutional schemes through
which South Africa might attempt to perpetuate its oppression and exploita-
tion; to endeavour to ensure non-recognition of any administration not issu-

ing from free elections in Namibia under UN supervision; to secure the
territorial integrity of Namibia; and to continue to mobilize international
support for the withdrawal of the illegal administration of South Africa from
Namibia (G.A. res. 34192A).
(v) THE UNITED NATIONS HIGH COMMISSIONER ~0x2 REFUGEES(UNHCR)
The Office of the UNHCR was established as of 1 January 1951 by the

General Assembly as a successor to the short-lived International Refugee
Organization. The High Commissioner is not, as is often erroneously assumed,
a part of the UN Secretariat. Rather, he is a subsidiary organ of the Assem-
bly, elected by it and reporting to it annually through the Economic and
Social Council.
The High Commissioners function is to provide international protection to
refugees who fall within the scope of his Statute by (a) promoting the conclu-
sion and ratification of international conventions for the protection of refu-
gees, supervising their application, and proposing amendments thereto; (b)
promoting, through special agreements with Governments, the execution of
any measures calculated to improve the situation of refugees and to reduce
the number requiring protection; (c) assisting governmental and private ef-
forts to promote voluntary repatriation or assimilation within new national
communities; (d) promoting the admission of refugees to the territories of
States; (e) endeavouring to obtain permission for refugees to transfer their
assets and especially those necessary for their resettlement; (f) obtaining
from Governments information concerning the number and conditions of ref-
ugees in their territories and the laws and regulations concerning them; (g)
keeping in close touch with the Governments and intergovernmental organi-
zations concerned; (h) establishing contact with private organizations dealing
with refugee questions; and (i) facilitating the co-ordination of the efforts of
private organizations concerned with the welfare of refugees.
Under the terms of the Statute a refugee is any person who is outside the
country of his nationality or, if he has no nationality, the country of his former
habitual residence, because he has or had well-founded fear of persecution by
reason of his race, religion, nationality, or political opinion and is unable or,
because of such fear, is unwilling to avail himself of the protection of the
government of the country of his nationality, or, if he has no nationality, to
return to the country of his former habitual residence (Statute, para. 6B).
Protection of refugees is interpreted to mean legal and quasi-consular
protection and does not include the provision of material assistance. Thus
while the administrative expenses of the Office of the UNHCR are part of the
regular UN budget all other expenditures are financed by voluntary contribu-
tions (Statute, para. 20).
In practice, the competence of the High Commissioner, both as to the
persons on whose behalf he acts and as to the procurement of financial and
other means, has been interpreted liberally from the outset. Thus the High
Commissioner has consistently been requested by the General Assembly to
extend his good offices whenever appropriate and to assist persons who do
not, strictly speaking, come within his mandate. In recent years, as the size
and complexity of the refugee problem in many parts of the world has grown
dramatically, the High Commissioners responsibilities have increased accord-
ingly. His main efforts have been directed towards: the prevention ofrefbulemer&
(the return of a person to a country where he has reason to fear persecution);
the granting of asylum, at least on a temporary basis; and the observance of
the traditional obligations to rescue those in distress at sea. In his 1979
report the High Commissioner notes serious difficulties encountered in these
areas and instances where lack of respect for the fundamental human rights
of refugees have led to tragic consequences.
The main aim of UNHCR assistance programmes financed from voluntary
funds is to help Governments in the search for durable solutions for refugees
and displaced persons of concern to the High Commissioner and in the pro-
motion of self-sufficiency within the shortest period of time. Where appropri-
ate, UNHCR actively supports all efforts in favour of the return of refugees
to their country of origin or former habitual residence by means of voluntary
repatriation. However, in many cases of continued asylum, local integration
forms the bulk of UNHCR assistance; such integration is possible in both
urban and rural areas, depending on the nature of the case. In cases where
durable solutions are not possible in countries of first asylum, resettlement in
third countries becomes necessary.
The magnitude of recent problems dealt with by UNHCR is illustrated by
the fact that the number of refugees and displaced persons increased by an
average of 2000 per day for the whole of 1978. The tragic events in South-
East Asia, which reached their height in 1979, greatly enlarged this average.
Thus, between 1975 and July 1979 over a million persons left their countries
from the three States of the Indo-China peninsula alone. Of those, over
550,000 sought asylum in South-East Asia. l4 In addition, other major refugee
problem areas include Bangladesh, the horn of Africa, Zaire, Nicaragua,
Cuba, and Southern Africa, to mention only a few.
In conclusion, it should be noted that Palestine refugees do not come within
the competence of the High Commissioner. The Statute provides that his
competence does not extend to persons who receive protection and assistance
from other UN organs. Thus, the relevant agency in Palestine is the UN
Relief and Works Agency for Palestine Refugees in the Near East (1980
report in UN dot. A/35/13).
(c). Economic and Social Council
(i) COMPOSITION, FUNCTIONS AND PROCEDURES
The Economic and Social Council (ECOSOC) is, under the authority of the
General Assembly, the principal organ of the UN with responsibility in mat-
ters of international economic and social co-operation, and the promotion of

universal respect for, and observance of, human rights. Originally composed
of 18 members it now has 54 members who are elected by the Assembly on
the basis of an equitable geographical distribution. While this basis is not
specified in the Charter it is considered legally binding. Each member of
ECOSOC has one vote and all of its decisions are taken by a majority of the
members present and voting.
ECOSOC adopts its own rules of procedure which it has amended on a
number of occasions. l5 The Council normally holds one organizational session
and two regular sessions each year. Special sessions may also be held. Human
rights matters are generally dealt with at the first regular session of the
year. The Council has three sessional committees-the Economic, Social
and Coordination Committees. Human rights items are generally referred to
the Social Committee on which all Council members are represented, al-
though some are dealt with directly in plenary meetings. In 1948, the Council
established a separate Human Rights Committee to consider the draft of the
Universal Declaration of Human Rights and the Final Act of the Freedom of
Information Conference (Dot. EICONF. 6/79). However, this Committee was
not continued. The reports of the Social Committee, which contain draft
resolutions and draft decisions, are submitted to the Council for final action in
plenary meetings.
In addition to its sessional committees the Council has also established, in
1976, a sessional Working Group to assist it in the examination of reports
under the International Covenant on Economic, Social and Cultural Rights.
The work of this group is considered below.
(ii) THEFUNCTIONSA~~DPOWERS~FECOSOC INHUMANRIGHTSMATTERS
The Charter (Article 62 (2)) vests in ECOSOC the power to make recommen-
dations for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all. The Council may prepare draft
conventions for submission to the General Assembly, with respect to matters
falling within its competence and it may call international conferences on such
matters (Art. 52). ECOSOC is the organ which is responsible for agreements
with the specialized agencies, a matter which is of great importance for
human rights questions, particularly in regard to those agencies (ILO, Unesco
and WHO) which engage in essential activities in the human rights field.
ECOSOC may co-ordinate the activities of the agencies through consultation
and recommendation (Art. 63). However, the Councils effectiveness in this
regard has been limited16 and in 1979 it decided to extend the terms of
reference of the Commission on Human Rights to provide that the Commis-
sion will assist the Council in its human rights co-ordination role (E/RES/1979/36).
The Charter also empowers the Council to obtain regular reports from the
specialized agencies and to arrange with the Members of the UN and with the
agencies to obtain reports on the steps taken to give effect to its own recom-
mendations and to relevant General Assembly recommendations (Art. 64
(1)). The system of periodic reports in the field of human rights which was
introduced by the Council in 1956 is considered below.
ECOSOC is also called upon to make suitable arrangements for consulta-
tion with non-governmental organizations which are concerned with matters
within its competence (Art. 71). In 1950, the Council enacted detailed ar-
rangements for consultation with non-governmental organizations. These were
replaced in 1968 by new arrangements contained in Council resolution 1296
(XLIV). In establishing consultative relations with organizations, ECOSOC
distinguishes between organizations in general consultative status (category
I); organizations in special consultative status (category II); and organiza-
tions which can make occasional and useful contributions and are included in a
list known as the Roster. Organizations in category I may propose to a
committee of the Council that it request the Secretary-General to place items
of special interest to them on the provisional agenda of the Council. Organiza-
tions in categories I and II may designate authorized representatives to sit as
observers at public meetings of the Council and its subsidiary bodies. Subject
to certain conditions as to size and substance, they may submit written
statements for circulation and may be given hearings. Similar provisions
apply to consultation of non-governmental organizations with Commissions,
Ad Hoc Committees and other subsidiary organs of the Council.
The responsibilities of ECOSOC were re-defined by the General Assembly
in 1977 in the context of an overall restructuring of the economic and social
sectors of the UN system. They include:
(a) To serve as the central forum for the discussion of international economic and social
issues of a global or interdisciplinary nature and the formulation of policy recommendations
thereon addressed to Member States and to the UN system as a whole;
(b) To monitor and evaluate the implementation of overall strategies, policies and priori-
ties established by the General Assembly;
(c) To ensure the overall co-ordination of the activities of the UN system in the economic,
social and related fields;
(d) To carry out comprehensive policy reviews of operational activities throughout the
UN system.
(GA res 321197(1977) Annex)
(d). Subsidiary Organs of ECOSOC Other than the Functional Commissions

As a general rule ECOSOC does its substantive work through subsidiary
organs and on the basis of reports submitted to it by these organs. Article 68
of the Charter provides that the Council shall set up commissions in economic
and social fields and for the promotion of human rights, and such other
commissions as may be required for the performance of its functions.
In the human rights field two commissions have been established: the
Commission on Human Rights and the Commission on the Status of Women.
Their central role and that of their subsidiary organs and bodies in UN
human rights endeavours is described below.
In addition to these two functional commissions of general competence, the

Council has entrusted important human rights assignments to other sub-
sidiary organs. Some of these, by way of example, are:
- The ad hoc Committee on the Drafting of the Genocide Convention which was appointed
in 1948, prepared a draft which was approved by the Assembly in the same year;
- The ad hoc Committee on Statelessness and related problems which was established in
1949 and whose work resulted in the adoption of the 1951 Convention on the Status of
Refugees;
- Subsidiary organs established to deal with the question of slavery and related practices;r7
- The ad hoc Committee on Forced Labour consisting of five independent members ap-
pointed jointly by the UN Secretary-General and the IL0 Director-General pursuant to a
1951resolution of ECOSOC (res. 350 (XII)). Its task was to study the nature and extent of
the problem raised by the existence in the world of systems of forced or corrective
labour, which were employed as a means of political coercion or punishment for holding or
expressing political views, and which were on such scale as to constitute an important
element in the economy of a given country. The Committees report (dot. E/2431 (1953))
had a major impact both on international legislation on the subject and on the actual
situation in some of the countries concerned.
- The Sessional Working Group on the Implementation of the International Covenant on
Economic, Social and Cultural Rights established by ECOSOC decision 1978/10in accor-
dance with its earlier resolution 1933 (LX) (1976). The Groups role is discussed in Chapter
11 below.
(e). Commission on Human Rights
(i) GENERAL QUESTIONS
UN commissions such as those on Human Rights, Social Development, Popu-

lation and Narcotic Drugs are referred to as functional commissions to
distinguish them from regional commissions such as the Economic Com-
mission for Latin America.
The establishment of the Commission on Human Rights was recommended
in the report of the Preparatory Commission of the United Nations in 1945
and decided upon by ECOSOC at its first session, in February 1946 (res.
5(I)). Initially, the Commission was to consist of a nucleus of nine members
appointed in their individual capacity, hence the designation as a nuclear
Commission. In its report to the Council (E/38/Rev. 1) the nuclear Commis-
sion recommended that all members of the Commission on Human Rights
should serve as non-governmental representatives. The Council did not agree
and decided at its second session, in June 1946, that the Commission should
consist of one representative from each of eighteen members of the UN
selected by the Council (res.S(II)). To those who wanted the Commission to
consist of persons serving as individuals and not as representatives of gov-
ernments, a small concession was made by providing that with a view to
securing a balanced representation in the various fields covered by the Com-
mission, the Secretary-General shall consult with the governments so se-
lected before the representatives are finally nominated by these governments
and confirmed by the Council. In the 34 years following the enactment of
this provision no case of the Secretary-General objecting to the qualification

of a representative, or of the Council refusing to confirm him, has become
known.
The membership of the Commission was increased to 22 in 1961, to 32 in
1966 and to 43 in 1979 (Council res. E/1979/36). The 43 members are elected
for three-year terms by the Council on the basis of an equitable geographic
distribution. In 1980, there were 11 members from African States, 9 from
Asian States, 8 from Latin American States, 10 from Western European
and other States (including the United States of America) and 5 from social-
ist States of Eastern Europe. The Commission operates under the rules of
procedure of the functional commissions of ECOSOC. Although the Com-
mission presently meets annually for a single period of six weeks, with an
extra week for meetings of working groups, it has decided to consider: (i)
the possibility of creating an inter-sessional role for the Commissions Bu-
reau (Chairman, Vice-Chairman and Rapporteur); and (ii) the possible need
to convene emergency sessions of the Commission in order to consider
responding to reports of mass and flagrant violations of human rights of an
urgent nature (CHR res. 28 (XXXVI) of 1980).
(ii) THE COMMISSIONS TERMS OF REFERENCE
ECOSOC resolved in 1946 that the work of the Commission on Human

Rights shall be directed towards submitting proposals, recommendations
and reports to the Council regarding:
(a) An international bill of rights;

(b) International declarations or conventions on civil liberties, the status of women,
freedom of information and similar matters;
(c) The protection of minorities;
(d) The prevention of discrimination on grounds of race, sex, language or religion;
(e) Any other matter concerning human rights not covered by items (a), (b), (c) and (d).
In 1979 the Council (res. E/1979/36) added the following provision to these
terms of reference:
The Commission shall assist the Economic and Social Council in the co-ordination of
activities concerning human rights in the United Nations system.
Under the Council resolutions of 1946, the Commission shall make studies
and recommendations and provide information and other services at the re-
quest of the Economic and Social Council. It shall also submit at an early
date suggestions regarding the ways and means for the effective implemen-
tation of human rights and fundamental freedoms.
In its 1979 resolution the Council also reaffirmed that the Commission will
be guided by the standards in the field of human rights as laid down in the
various international instruments in that field. It further noted that, in con-
formity with the Charter, the Universal Declaration and the relevant inter-
national instruments, the Commission, in fulfilling its tasks, should take into
account the concepts contained in General Assembly resolution 321130 of
1977.
(iii) SURVEY OF THE COMMISSION'SAPPLICATION 0F ITSTERMS OF REFERENCE
1. The International Bill of Rights
From the outset the Commission devoted its major energies to preparing
an International Bill of Human Rights. At its second session in 1947 the
Commission decided to use this term to refer to: a) the proposed declaration,
b) the then contemplated single Covenant on Human Rights, and c) the
measures of implementation. The history of the adoption of the Universal
Declaration of Human Rights by the General Assembly on 10 December 1948
has been traced in Part I of this book. In 1952, the Assembly decided to
prepare two Covenants, one on civil and political rights and the other on
economic and social rights (G.A. res. 543 (VI)). The Commission completed
its contribution to the drafting of the Covenants in 1954 but they were not
finally adopted by the General Assembly until 16 December 1966. Both the
International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights, as well as the Optional
Protocol to the latter entered into force in 1976. On 1 January 1982 these
instruments had received 68, 69 and 26 ratifications respectively. The Cove-
nants substantive provisions were dealt with in Part I of this Manual and
their procedural aspects are considered in Chapter 11.
While the Covenants are clearly binding as treaties in international law for
those States which have ratified them, the status of the Universal Declara-
tion is less certain. Much has been written on the subject and it is generally
agreed that the Universal Declaration possesses high moral and political
authority. In addition, it: has become an international standard by which the
conduct of governments is judged both within and outside the UN; has in-
spired a great number of international and regional treaties; is cited as the
basis and justification for many important decisions taken by UN bodies; is
reflected in many national constitutions, in national legislation and in the
decisions of both national and international courts; and has been claimed by
many scholars to have acquired the force of law as part of the customary law
of nations.l
2. Other instruments in the drafting of which the Commission has played a

significant role
A comprehensive list of conventions and declarations adopted by the UN in

the human rights field is contained in Annex 1 of this book. In the present
section only some of these are noted.
Declaration of the Rights of the Child (1959). It was originally prepared in

1950 by the UNs Social Commission and was referred to the Commission for
its consideration. After work at its 1957 and 1959 sessions the Commission
presented a draft Declaration to ECOSOC and this was subsequently adopted
by the General Assembly in 1959 (res. 1386 (XIV)). In addition, the Commis-
sion is currently drafting a convention on the rights of the child and expects
to submit a complete draft to the General Assembly in 1982.22
United Nations Declaration on the Elimination of All Forms of Racial

Discrimination (1963). This Declaration (and its companion Convention) is
one of the results of a chain of events which started as a reaction to an
epidemic of swastika-painting and other manifestations of anti-Semitism and
other forms of racial and national hatred and religious and racial prejudices of
a similar nature, which occurred in many countries in the winter of 195911960.
The Sub-Commission on Prevention of Discrimination and Protection of Mi-
norities, which happened to be in session at that time (January 1960), adopted a
resolution condemning the events and recommending action to its superior
bodies (E/CN.4/800). Subsequently, the General Assembly decided that four
instruments were to be prepared, viz. a draft declaration and a draft conven-
tion on the elimination of all forms of racial discrimination and a draft declara-
tion and a draft convention on the elimination of all forms of religious intolerance
(G.A. res. 1780 and 1781 (XVII) of 1962). All four instruments were to be
prepared by the Commission bearing in mind the views of the Sub-Commission
and of governments. The Racial Discrimination Declaration was adopted by
the Assembly in 1963 (res. 1904 (XVIII)) and the Convention in 1965 (res.
2106 (XX)).
Declaration on the Elimination of Religious Intolerance. Although the Sub-

Commission prepared a preliminary draft on this subject in 1963 (E/CN.4/873),
which was considered by the Commission and submitted to the General As-
sembly in 1964, serious disagreements delayed the adoption of an interna-
tional instrument. At its 36th session in 1981 the General Assembly finally
adopted the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief.23
Declaration on Territorial Asylum (1967). Article 14 of the Universal Decla-

ration provides that everyone has the right to seek and to enjoy in other
countries asylum from persecution. This provision was criticized because it
set forth the right to seek asylum without an indication that the asylum
should be granted. Thus between 1957 and 1960 the Commission prepared a
draft Declaration on Territorial Asylum which was formally adopted by the
General Assembly in 1967 (res. 2312 (XXII)).24 The Declaration on Territo-
rial Asylum, while not proclaiming a right to be granted asylum, goes beyond
the provisions of the Universal Declaration in stating that the situation of
persons entitled to invoke Article 14 of the Universal Declaration is, without

prejudice to the sovereignty of States, of concern to the international com-
munity. The Declaration also provides that a person coming under Article 14
of the Universal Declaration shall not be subjected to measures such as
rejection at the frontier or expulsion or compulsory return to any State
where he may be subjected to persecution.
Declaration on the Protection of All Persons from Being Subjected to Tor-

ture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In
1975, the General Assembly, on the recommendation of the Fifth UN Con-
gress on the Prevention of Crime and the Treatment of Offenders, adopted
this Declaration (G.A. res. 3452 (XXX)). In 1977 the Assembly requested the
Commission to draft a convention on the same subject and this work contin-
ued at the 1982 session of the Commission.
Convention on the International Right of Correction (1952). The origins

of the Convention are noted below in connection with the Sub-Commission
on Freedom of Information and of the Press. The Convention was adopted
in 1952 (G.A. res. 630 (VII)), but had only received 11 ratifications by
1 January 1982. Its objective is to ensure that a person referred to in a
printed report should have the right to convey his side of the question to
readers.
International Convention on the Elimination of All Forms of Racial Dis-

crimination (1965). This Convention is examined in the following chapter.
Convention on the Non-Applicability of Statutory Limitation to War Crimes

and Crimes Against Humanity (1968). In 1965 the question of the punish-
ment of war criminals and persons who have committed crimes against hu-
manity was brought before the UN organs. The issue was the problem of the
application of statutory limitation to these crimes. It has aroused interest
because of legislation extending the period of statutory limitation which was
then being enacted by the Federal Republic of Germany. Under the Conven-
tion subsequently adopted by the Assembly (res. 2391 (XXIII)) no statutory
limitation shall apply to war crimes and crimes against humanity, as re-defined
in it, irrespective of the date of their commission.
International Convention on the Suppression and Punishment of the Crime

of Apartheid (1973) (G.A. res. 3068 (XXVIII)). While this is examined in the
following chapter it is of note in the present context because some of the
functions set out in the Convention are performed by the Commission on
Human Rights.
3. Other International Instruments of Major Importance in the Human

Rights Field
Once again, only a selection of relevant instruments can be noted in the

present Chapter. Those relating to the status of women are considered in a
later section of this Chapter.
Declaration on the Granting of Independence to Colonial Countries and

Peoples (1960)(G.A. res. 1514 (XV)).
Declaration on Social Progress and Development (1969)(G.A. res. 2542 (XXIV)).

The Declaration is unique in the domain of instruments relating to general
development questions since it contains a great number of provisions which
deal with human rights in the most technical sense.
Declaration on the Rights of Mentally Retarded Persons (1971) (G.A. res.

2856 (XXVI)). It defines a series of rights for the dignity, well-being and
interests of the mentally retarded person.
Standard Minimum Rules for the Treatment of Prisoners (1957). These

were approved by ECOSOC in resolution 663 C (XXIV) and 2076 (LXII).
Principles of international co-operation in the detection, arrest, extradition

and punishment of persons guilty of war cmmes and crimes against human-
ity (1973)(G.A. res. 3074 (XXVIII)).
Universal Declaration on the Eradication of Hunger and Malnutrition (1974).

Adopted by the 1974 World Food Conference and endorsed by the General
Assembly (res. 3348 (XXIX)).
Declaration on the Protection of Women and Children in Emergency and

Armed Conflict (1974)(G.A. res. 3318 (XXIX)).
Declaration on the Rights of Disabled Persons (1975)(G.A. res. 3447(XxX)).
Declaration on the Use of Scientific and Technological Progress in the Inter-

ests of Peace and for the Benefit of Mankind (1975) (G.A. res. 3384 (XXX)).
International Declaration against Apartheid in Sports (G.A. res. 321105

M(1977)).
Declaration on the Preparation of Societies for Life in Peace (1979) (G.A.

res. 33173).
International Convention Against the Taking of Hostages (1979) (G.A. res.

341146).
Code of Conduct for Law Enforcement Officials (1979) (G.A. res. 341169).
4. Human Rights-Related Instruments Being Considered by UN Organs as

of 1982
Some of these instruments, such as those relating to the rights of the child,
to torture, and to the elimination of religious intolerance, have already been
noted before. In addition, various UN organs are presently at different stages
in the preparation of important new instruments. These include the following:
Draft general principles on equality and non-discrimination in respect of
persons born out of wedlock. (E/1978/14 and Add. 1-8)
Body of principles for the protection of all persons under any form of
detention and imprisonment. (E/CN.4/1296(1978) para. 109)
Draft declaration on the human rights of individuals who are not citizens of
the country in which they live (E/CN.4/1336 and E/CN.4/1354 and Adds.
(1979)).
Draft declaration on the rights of members of national, ethnic, religious and
linguisticminorities. (E/CN.4/NG0/231(1979) and EICN.WL. 1367/Rev. l(l980))
Draft code of medical ethics (A/34/273( 1979)).
Draft international convention on the protection of the rights of all migrant
workers and their families (A/34/535 and Add. 1 and G.A. res. 341172(1979)).
Draft international convention against apartheid in sports (A34136 (1979)).
The drafting of an international convention to outlaw mercenarism in all its
manifestations is also under consideration by the General Assembly (res.
34/140 (1979)).
The elaboration of a draft declaration confirming common United Nations
principles and standards defining limitations and restrictions on the exercise
of certain human rights was proposed by the Sub-Commission in 1980
(res.I(XXXIII)).
The Sub-Commission has entrusted one of its members (Mrs. Erica-Irene
A. Daes) with the task of submitting to it in 1981: (a) guidelines related to
procedures for determining whether adequate grounds exist for detaining
persons on the grounds of mental ill-health, and (b) principles for the protec-
tion, in general, of persons suffering from mental disorders (r-es.11
(XXXIII)(1980)).
5. Ratification of human rights instruments
While the drafting of international human rights instruments continues

apace, it is only very recently that attention has been focused institutionally
on the need to promote widespread ratification of such instruments. The

encouragement of ratification by States has long been an important charac-
teristic of the system of international labour standards developed by the IL0
(see Chapter 12, infra) and has also been emphasized by the United Nations
High Commissioner for Refugees (ACONF.32115 (1967)). The chart presented
at the end of this book demonstrates that, while many ratifications have been
achieved, there is considerable unevenness in the number of ratifications by
different States and in the extent to which different instruments have been
ratified.
In 1979 the Sub-Commission, at the suggestion of a non-governmental
organization (EKJN.4Sub.21NG0.80 and Add. 1 and NG0.82) formally acknowl-
edged the importance of actively promoting ratification by establishing a
sessional working group to meet each year during the sessions of the Sub-
Commission in order to consider ways and means of encouraging Govern-
ments which have not yet done so to ratify or adhere to the major international
human rights instruments (Sub-Commission resolution 1 B (XxX111) (1979)).
In the same resolution the Sub-Commission requested Governments to in-
form it, through the Secretary-General, of the circumstances which so far
have not enabled them to ratify or adhere to particular instruments and to
explain any particular difficulties which they may face, in respect of which
the United Nations could offer any assistance. The task of the working group
is to examine the replies received from Governments and, where appropri-
ate, to consider what forms of assistance might be provided by the United
Nations to facilitate ratification. At the first session of the Group, in 1980,
considerable discussion was devoted to the questions of whether the Sub-
Commission was competent: (a) to request such information from Govern-
ments; and (b) to invite Government representatives for discussion with
members of the Working Group with a view to providing further clarifica-
tion. The Group eventually concluded that representatives of States could
be invited for clarification and discussions but that their appearance could not
be demanded. It also noted that its task was not inquisitorial or adjudicatory
but was to encourage and facilitate universal acceptance of human rights
instruments (E/CN.4/Sub.2/453). Nevertheless, the establishment ofthe group
and its implicit acceptance by the Commission constitute a significant devel-
opment in terms of the international communitys endeavours to encourage
States to undertake formal legal obligations in the field of human rights.
6. Other Activities of the Commission on Human Rights
While the Commission has devoted a considerable amount of time to the

preparation of international standard-setting instruments in the human rights
field, its work has also developed in a variety of other directions.25 Writing in
1975 one scholar distinguished three major stages in UN human rights activi-
ties. The first stage (1945-55) was devoted mainly to standard-setting and
included the adoption of the Universal Declaration of Human Rights and the
preparation of the two International Covenants. During the second stage
(1955-65) the UN focused mainly on the promotion of respect for human
rights. Its endeavours included the institution of a system of periodic report-
ing on human rights, the establishment of a programme of advisory services
and the preparation of studies on a variety of topics. The third stage
(1965-present) has been increasing emphasis on international protection of
human rights and has involved the development of a more effective communica-
tions (i.e. complaints) procedure, efforts to deal with specific situations in-
volving gross violations of human rights, and the undertaking of a series of
operational fact-finding activities. Since 1977, a fourth stage has also emerged,
which emphasizes the structural and economic aspects of human rights is-
sues. The first of these stages has been considered above and the other three
are considered in the second part of this Chapter.
One further matter which warrants mention at this point is the tendency of
the Commission in recent years to take action without prior reference to
ECOSOC. Council resolutions 5(I) and 9(11) of 1946 provide that the work of
the Commission shall be directed towards submitting proposals, recommen-
dations and reports to the Council. They do not provide for direct and inde-
pendent action by the Commission. Nevertheless, in recent years the
Commission has taken action in response to a number of violations situations
without having obtained the prior consent of the Council.27
(f). Sub-Commission on Prevention of Discrimination and Protection

of Minorities
Originally, four Sub-Commissions, in addition to the Commission on Human
Rights, were to have been established by ECOSOC. One of these, the Sub-
Commission on the Status of Women became a full commission in 1946 (Coun-
cil res. 11 (II)), and another, the Sub-Commission on Freedom of Information
and the Press, was established in 1947. The work of these two organs is
considered below. In 1947, the Commission decided to establish a single
Sub-Commission, rather than two separate ones, to deal with both the pre-
vention of discrimination and the protection of minorities.
The main distinguishing feature of the Sub-Commission is that its mem-
bers are independent experts, acting in their individual capacities. They are
elected for three years by the Commission from nominations made by States.
In addition to the role of governments in electing the Sub-Commission mem-
bers, governments also have the right to withhold their consent to one of
their nations serving on the Sub-Commission. Membership of the Sub-
Commission has increased from 12 in 1947 to 14 in 1959, 18 in 1965 and 26
since 1969. In geographical terms 12 are elected from the Afro-Asian States,
6 from Western European and other States, 5 from Latin American States
and 3 from Eastern-European States. As of 1980, sessions of the Sub-Commission
last for four weeks (Council res. E/1979/36). A proposal by the Sub-Commission
that its name be changed to the Sub-Commission of Experts on Human

Rights was not endorsed by the Commission in 1980.
The Sub-Commission has frequently been criticized by its superior bodies,
generally on the grounds that its approach was too radical. In 1951 an unsuc-
cessful attempt was made to abolish the Sub-Commission. This followed a
decision by the Commission in 1950 not to forward various proposals submit-
ted by the Sub-Commission to the Council and to take no action at all on
others. In 1951 the Council decided to discontinue the Sub-Commission after
a final session in October 1951 (Council res. 414 (XIII)). However, when the
General Assembly considered this decision, it noted that the full application
and implementation of the principle of non-discrimination are matters of
supreme importance and should constitute the primary objectives of UN
work. It therefore invited the Council to authorize the Sub-Commission to
continue its work and, especially, to convene a session in 1952 (G.A. res. 532
B (VI) of 1952). The Council subsequently reversed itself and complied with
the decision of the Assembly (Council res. 443 (XIV) of 1952).
(i) THETERMSOFREFEREN~~OFTHESUB-COMMISSION,THEIRINTERPRETATION
AND APPLICATION
When establishing the Sub-Commission in 1947, the Commission described

the task of the Sub-Commission in general terms as being: to examine what
provisions should be adopted in defining the principles to be applied in the
field of the prevention of discrimination on grounds of race, sex, language or
religion, and in the field of the protection of minorities, and to make recom-
mendations to the Commission on urgent problems in these fields (E/259,
para. 19). In 1949, the terms of reference were clarified and extended in
scope to read as follows:
(a) to undertake studies, particularly in the light of the Universal Declaration of Human
Rights and to make recommendations to the Commission on Human Rights concerning
the prevention of discrimination of any kind relating to human rights and fundamental
freedoms and the protection of racial, national, religious and linguistic minorities; and
(b) to perform any other functions which may be entrusted to it by the Economic and
Social Council or the Commission on Human Rights.
No definite interpretation of prevention of discrimination as distinct from

protection of minorities has been agreed upon in treaty form or by a prinicipal
organ. For the purpose of interpreting the terms of reference of the Sub-
Commission it is, however, appropriate to quote from a statement on termi-
nology which the Sub-Commission adopted at its first session in 1947 and
which has never been challenged by a higher organ. Prevention of discrimi-
nation, the Sub-Commission said, is the prevention of any action which
denies to individuals or groups of peoples equality of treatment which they
may wish. Protection of minorities on the other hand, is the protection of
non-dominant groups which, while wishing in general for equality of treat-
ment with the majority, wish for a measure of different treatment in order to
preserve basic characteristics which they possess and which distinguish them
from the majority of the population. The characteristics meriting such pro-
tection are race, religion and language (EiCN.4152, chap. V).
In its first years the Sub-Commission devoted a great part of its efforts to
the question of the protection of minorities. Due to the reluctance of Govern-
ments to commit themselves in regard to this complex and delicate ques-
tion, the General Assembly decided not to deal with it in the text of the
Universal Declaration of Human Rights, but requested a further study of the
problem by the Commission and the Sub-Commission (G.A. res. 217 C (III) of
1948). The result, inter alia, of these studies is Article 27 of the International
Covenant on Civil and Political Rights, the only general norm dealing with
the problem of minorities to be produced by the United Nations. It provides
that, in those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in commu-
nity with the other members of their group, to enjoy their own culture, to
profess and practice their own religion, or to use their own language. Follow-
ing the adoption of the Covenant, in 1966, the Sub-Commission initiated a
study of the principles contained in it. The outcome of the study is noted
below.
In addition to making an important contribution to the drafting of a num-
ber of international standards, some of which were noted earlier, the Sub-
Commission has undertaken studies on a wide range of topics. Some of these
are considered below. Moreover, it has played an important role in prompt-
ing studies and other activities to be undertaken by specialized agencies such
as Unesco and ILO. The part played by various working groups of the Sub-
Commission has also been very significant and the work of some of these,
such as those dealing with communications and with the ratification of inter-
national human rights instruments, is noted below.
In the present context it is proposed only to consider the Working Group
on Slavery which was established in 1974 (Sub-Commission res. 11 (XXVIII)).
The question of slavery has long occupied the attention of the UN and, before
it, of the League of Nations. s It should be noted, however, that the current
UN usage of the term slavery covers a variety of slavery-like practices.
This interpretation has enabled the Slavery Working Group to perform very
useful work relating to fields as diverse as prostitution, child labour, debt
bondage, apartheid, migrant workers and, of course, slavery, the slave trade
and the traffic in persons.
(g). Sub-Commission on Freedom of Information and of the Press

This Sub-Commission was also established by the Commission in 1947 and
was composed of 12 persons serving in their individual capacities. Its function
was, in the first instance, to examine what rights, obligations and practices
should be included in the concept of freedom of information, to report on any
issues that might arise from such examination and to perform any other
functions which might be entrusted to it by the Council or by the Commission
(E/259 (1947), Chap. III). It held only five sessions, between 1947 and 1952,
and its mandate was terminated by ECOSOC (res. 414 (XIII) of 1951). The
first session of the Sub-Commission was mainly devoted to preparations for
the UN Conference on Freedom of Information which met in 1948. At its
second session it drafted provisions of freedom of expression and information
for inclusion in the Universal Declaration and the Covenants. At its fourth
and fifth sessions the Sub-Commission completed the drafting of an Interna-
tional Code of Ethics for Journalists. At its final session it condemned as an
infraction of freedom of information and of the press, the action of the Argen-
tine police in closing the newspaper La Prensa.
(h). Commission on the Status of Wo,men
(i) GENERAL
The central importance of the UNs commitment to the principle of equality

between men and women, meaning equality in their dignity and worth as
human beings as well as equality in their rights, opportunities and responsi-
bilities has already been noted in Chapter 4 of this book. The principle of
non-discrimination is affirmed not only in the Charter (Preamble and Articles
1,8, 13,55,56 and 75) but in a large range of instruments adopted by the UN
and by the specialized agencies.
At its first session ECOSOC resolved to establish a Sub-Commission on
the Status of Women which would submit proposals, recommendations and
reports to the Commission on Human Rights (Council res. 5 (I) of 1946).
However, at its second session the Council conferred upon the Sub-
Commission the status of a full Commission reporting directly to ECOSOC
(res. 11 (II) of 1946). Its constitutional and legal status and its rules of
procedure are thus the same as for the Commission on Human Rights. Mem-
bership of the Commission on the Status of Women has increased from 15 in
1947 to 18 in 1951,21 in 1961 and 32 since 1966. States are elected to member-
ship of the Commission for four-year terms and on the basis of an equitable
geographical distribution. There are currently 8 members from African
States, 6 from Asian States, 6 from Latin American States, 8 from Western
European and other states and 4 from the Socialist States of Eastern
Europe.
In 1978, the Commission adopted a resolution stating its conviction that it
discharges important and essential functions with a view to the advancement
of women and urging its continuation as a separate Commission (res. 9 (XXVII)).
Nevertheless, proposals to abolish the Commission, in the context of an
overall restructuring of the economic and social sectors of the UN system,
are to be considered again by the General Assembly in 1980 (G.A. decision
341453).
Principal Institutions Founded Under the Charter
(ii) THETERM~OFREFEREN~EOFTHE~~MMI~~I~N~NTHE~TATU~~FWOMEN
The functions of the Commission are (a) to prepare recommendations and

reports to the Economic and Social Council on promoting womens rights in
political, economic, civil, social and educational fields, and (b) to make recom-
mendations to the Council on urgent problems requiring immediate attention
in the field of womens rights with the object of implementing the principle
that men and women shall have equal rights, and to develop proposals to give
effect to such recommendations, (Council res. 11 (11)(1946) and 48 (IV)(1947).
It may be noted that while matters relating to discrimination on the ground
of sex also continue to be within the competence of the Commission on Human
Rights, the Commission on the Status of Women has been the dominant
organ dealing with these issues.
(iii) APPLICATIONOFTHE COMMISSION'S TERMS OF REFERENCE
In order to avoid duplication of the survey in Chapter 4, it is proposed, in the

present context, only to consider the principal international instruments which
have been initiated by the Commission on the Status of Women or in the
preparation of which it has played a major role.
Declaration and Convention on the Elimination of All Forms of Discrimina-

tion against Women.
The Declaration was drafted by the Commission on the Status of Women
between 1965 and 1967 and adopted by the General Assembly in 1967 (res.
2263 (XXII)). The Declaration contains many international standards and
deals with issues such as political rights, nationality, rights under civil law,
discriminatory provisions of penal law, traffic in women, educational rights
and economic rights. It also provides for regular reports on relevant action
by States. Since 1970, these reports have been considered by the Commission.
In 1972, the Commission declared that existing international instruments
relating to the status of women were inadequate and that a new instrument
was required (Commission res. 5 (XXIV)). The first draft of a convention was
prepared by a working group of the Commission in 1974 (E/5451). The revised
draft was adopted by the Commission in 1976 and forwarded to the General
Assembly which adopted it on 18 December 1979 (G.A. res. 341180).
The Convention on the Elimination of All Forms of Discrimination against
Women is comprehensive in scope and requires the adoption by States of a
broad range of policy measures. In its preamble the Convention recalls that
discrimination against women violates the principles of equality of rights and
respect for human dignity, is an obstacle to the participation of women, on
equal terms with men, in the political, social, economic and cultural life of
their countries, hampers the growth of the prosperity of society and the
family, and makes more difficult the full development of the potentialities of
women in the service of their countries and of humanity. It also notes that a
change in the traditional role of men as well as the role of women in society
and in the family is needed to achieve full equality between men and women.
The term discrimination against women is defined in Article 1 of the
Convention to mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and funda-
mental freedoms in the political, economic, social, cultural, civil or any other
field.
In accordance with a policy of eliminating discrimination against women,
States Parties to the Convention undertake: (a) To embody the principle of
equality of men and women in their national Constitutions or other appropri-
ate legislation if not yet incorporated therein, and to ensure, through law and
other appropriate means, the practical realization of this principle; (b) To
adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women; (c) To establish
legal protection of the rights of women on an equal basis with men and to
ensure through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination; (d) To refrain
from engaging in any act or practice of discrimination against women and to
ensure that public authorities and institutions shall act in conformity with
this obligation; (e ) To take all appropriate measures to eliminate discrimina-
tion against women by any person, organization or enterprise; v) To take all
appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination against
women; and (g) To repeal all national penal provisions which constitute dis-
crimination against women (Art. 2).
In the broadest terms Part I of the Convention provides that:
States Parties shall take in all fields, in particular in the political, social, economic and
cultural fields, all appropriate measures, including legislation, to ensure the full develop-
ment and advancement of women, for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on a basis of equality with men.
The Convention also recognizes the need for reverse discrimination in

appropriate circumstances (Art. 4) and for measures to modify social and
cultural patterns of conduct which are based on ideas of inferiority or on role
stereotypes (Art 5).
The second and fourth parts of the Convention deal with civil and political
rights and contain provisions relating to equality: in political and public life
(Art 7); of representation at the international level (Art. 8); in questions of
nationality (Art. 9); before the law (Art. 15); and in matters relating to
marriage and family relations (Art. 16).
In some respects, however, Part II which relates to economic, social and
cultural rights, represents the greatest progress when compared to the ear-
lier Declaration. Article 10, concerning education, provides not only for equal-
ity of access to all levels of schooling and of access to the same curricula, the
same examinations, teaching staff with qualifications of the same standard
and school premises and equipment of the same quality, but also for the
elimination of any stereotyped concept of the roles of men and women at all
levels and in all forms of education. The same article also requires that
appropriate measures be taken to ensure: the same opportunities for access
to programmes of continuing education, including adult and functional liter-
acy programmes; the reduction of female student drop-out rates and the
organization of programmes for girls and women who have left school prema-
turely; the same opportunities to participate actively in sports and physical
education; and access to specific educational information to help to ensure the
health and well-being of families, including information and advice on family
planning.
The right to work and to equal opportunities for and conditions of employ-
ment are also specifically included in the Convention (Art. 11). Paragraph 2
of the same article specifies measures which should be taken by States in
order to prevent discrimination against women on the grounds of marriage or
maternity and to ensure their effective right to work. They include, for
example, measures to prohibit dismissal on the grounds of pregnancy or of
maternity leave and discrimination in dismissals on the basis of marital
status.
The Convention also deals with the elimination of discrimination against
women in the field of health care (Art 12) and in other areas,bf economic and
social life including all aspects of cultural life (Art 13). States Parties are
required to take account of the particular problems faced by rural women and
to take all appropriate measures to eliminate discrimination against them in
order to ensure, on a basis of equality of men and women, that they partici-
pate in and benefit from rural development (Art. 14). The Conventions
implementation procedures are dealt with in the following chapter.
The Convention thus contains not only anti-discrimination measures, but
provisions requiring States to take a wide range of positive and constructive
actions designed to advance the status of women in different fields.
Convention on the Political Rights of Women.

The Convention was drafted by the Commission on the Status of Women
on its own initiative (E/1316 (194) para. 18) and was adopted by the General
Assembly in 1952 (res. 640 (VII)). By January 1982 it had been ratified by 86
States. Under the Convention, women are: entitled to vote in all elections;
eligible for election to all publicly elected bodies established by national law;
and entitled to hold public office and exercise all public functions on equal
terms with men.
Convention on the Nationality of Married Women.

This subject had first been dealt with at the international level by the
Hague Convention of 1930.33The Commission on the Status of Women first
proposed such a convention in 1949 (E/1316, para. 31). ECOSOC proposed
that the drafting of the Convention be undertaken by the International Law
Commission (r-es. 304 D (XI) of 1950) on the grounds that, if it was to do the
job, it would be necessary to examine the whole subject of nationality, includ-
ing statelessness (A/2163, para. 30). As a consequence, the responsibility for
drafting reverted back to the Commission on the Status of Women. The
Convention was adopted by the Assembly in 1957 (res. 1040 (XI)) but by
January 1982 had received only 54 ratifications. Under the Convention each
State Party agrees, inter alia, that neither the celebration nor the dissolu-
tion of a marriage between one of its nationals and an alien, nor the change of
nationality by the husband during marriage, shall automatically affect the
nationality of the wife. Neither the voluntary acquisition of the nationality of
another State, nor the renunciation of his nationality by a husband shall
prevent the retention of her nationality by the wife.
Recommendation and Convention on Consent to Marriage, Minimum Age

for Marriage, and Registration of Marriages.
These matters were taken up by the Commission in 1957 (res. 8 (XI)). The
Convention was adopted by the General Assembly in 1962 (res. 1763 A (XVII))
and the Recommendation in 1965 (G.A. res. 2018 (XX).34 The substantive
provisions of the two differ only in so far as the Recommendation expressly
provides that the minimum age for marriage should be not less than 15 years,
while the Convention leaves the specification of the minimum age to each
State party.
Declaration on the Protection of Women and Children in Emergency and

Armed Conflict.
Concern for the plight of women and children in emergency situations was
expressed by the Commission on the Status of Women in 1970 (res. 4 (XXII)).
Following a series of consultations involving the Commission and a number of
other bodies the General Assembly adopted the Declaration in 1974 (r-es. 3318
(XXIX)).
(iv) ~THERDI~VEL~P~VIENT~I~JTHEFIELD~FWOMEN'SRIGHTS
In 1972 the General Assembly endorsed a recommendation by the Commis-

sion on the Status of Women and proclaimed 1975 International Womens
Year (G.A. res. 3010 (XXVII)). The principal objectives of the Year were to
promote equality between men and women, to ensure the integration of
women in all development activities, and to increase the contribution of women
to the strengthening of world peace. The World Conference of the Interna-
tional Womens Year was held in Mexico City in 1975 and produced several
documents of considerable importance: the Declaration of Mexico on the

Equality of Women and their Contribution to Development and Peace, 1975;
and the World Plan of Action for the Implementation of the Objectives of the
International Womens Year. It also endorsed relevant plans of action for
the various UN regional economic and social commissions. These documents
constituted a blueprint for national action, supported by action at the re-
gional and global levels, to achieve the goals of International Womens Year
over a period of ten years and beyond, if necessary.
In accepting these proposals, the General Assembly (res. 3520 (XXX) of
1975) proclaimed the period 1976-1985 to be the United Nations Decade for
Women: Equality, Development and Peace. It also decided to convene a
Conference at the mid-term of the Decade in order to review and evaluate the
progress made in implementing these objectives. At the Conference, held in
Copenhagen in July 1980, a Programme of Action for the second half of the
Decade was adopted along with 48 resolutions on a wide variety of subjects-
including political, social, economic and cultural issues affecting all areas of
the world.36 Among the texts approved were subjects ranging from the situa-
tion of women in southern Africa and Namibia, El Salvador, Chile, Lebanon,
Bolivia, Sahrawi women and women of the Pacific; to payment of alimony,
assistance to disabled women, problems of rural women, migrant women,
and women refugees and displaced women. Recommendations were also set
forth in resolutions with regard to family planning, elderly women, battered
women and violence in the family, women living in conditions of extreme
poverty, and the education of young women. The Conference, by consensus,
recommended that the General Assembly in 1980 should consider the conven-
ing in 1985 of another world conference on women to review and appraise the
achievements of the Decade.
The Programme of Action was based on a review and appraisal of progress
made and obstacles encountered in implementing the 1975 World Plan of
Action. It begins with an introduction, a historical perspective and a concep-
tual framework and its stated purpose is to refine and strengthen practical
measures for advancing the status of women, and to ensure that womens
concerns were taken into account in the formulation and implementation of
the international development strategy for the Third United Nations De-
velopment Decade.
On the basis of a review of past experience the Programme draws three
lessons for the future: First, measures for women which are isolated from
the major priorities, strategies and sectors of development cannot result
in any substantial improvement in attaining the goals of the Decade. Second,
legislative and developmental action, unless. accompanied by positive and
concerted action to change attitudes and prejudices, cannot be fully ef-
fective. Third, mere provision of equal rights, development services and
opportunities will not, by themselves, help women to avail of them, with-
out simultaneous special supportive measures, for example, legal aid,
earmarking of benefits, information and knowledge and institutional in-

novation.
In its conceptual framework, the Programme deals with four main areas:
(a) the interrelation of the situation of women and the objectives of the
Decade; the relation between the existing world economic situation and world
peace and security; (b) the impact of the unjust world economic relations on
the role of women in development: the need for a new international economic
order to reduce the gap between the labour input of women and their socio-
economic returns; (c) the need to include new data and strategies concerning
the participation of women in development in the Third United Nations De-
velopment Decade; and (d) the interrelation of the objectives of the Decade
and the sub-theme of the World Conference-employment, health and education.
The Programme also contains sets of objectives and priority areas for the
final five years of the Decade at the national, regional and international
levels, as well as special sections devoted to measures of assistance for par-
ticular groups of women.
Several reporting systems have been established by the UN to monitor
progress in the implementation of international instruments relating in full or
in part to the status of women.37 Since 1979 these systems have been inte-
grated into a single system and the relevant procedures simplified in order to
encourage the submission of more and better reports (G.A. res. 33/186 of
1979).
While much of the work of the UN in this field has been devoted to stimu-
lating appropriate action at the national and regional levels, a large variety of
programmes has also been established by the specialized agencies. Some of
these have resulted from the emphasis attached to womens issues at interna-
tional conferences held since 1975. These include the World Employment
Conference (1976), the World Conference on Agrarian Reform and Rural
Development (1979), and the UN Conference on Science and Technology for
Development (1979). The recommendations relating to women and develop-
ment which emerged from these and a number of other UN conferences held
between 1975 and 1980 have been compiled in a single document (A/CONF.94/19
(1980)).
(i) . Security Council

Under the original text of Article 23 of the Charter the Security Council
consisted of five permanent members (China, France, the USSR, the United
Kingdom and the United States) and six non-permanent members, elected by
the General Assembly. By an amendment to Article 23, adopted in December
1963, and which came into force on 31 August 1965, the number of non-
permanent members was increased from six to ten and the membership of
the Council from eleven to fifteen. Each member of the Security Council has
one vote. Decisions of the Security Council on procedural matters shall be
made by an affirmative vote of nine members.
Decisions on all other matters, i.e. on matters which are not merely proce-
dural, shall be made by an affirmative vote of nine members including the
concurring votes of the permanent members (Article 27 as amended in 196311965).
The Charter also provides that, in the matter of the settlement of disputes
and in decisions concerning the reference of local disputes to regional agen-
cies, a party to a dispute shall abstain from voting. This rule does not apply to
Security Council action with respect to threats to the peace, breaches of the
peace, and acts of aggression (Chapter VII of the Charter). In such matters a
party to the dispute has the right to vote. In regard to the provision of
Article 27 (3) that a decision on a non-procedural matter shall be made by an
affirmative vote of nine members including the concurring votes of the per-
manent members it should be added that the voluntary abstention of a
permanent member of the Security Council is not to be considered as having
the effect of defeating the decision. The International Court of Justice stated
in its Advisory Opinion on Namibia of 1971 that the proceedings of the
Security Council extending over a long period supply abundant evidence that
presidential rulings and the positions taken by members of the Council, in
particular its permanent members, have consistently and uniformly interpre-
ted the practice of voluntary abstention by a permanent member as not
constituting a bar to the adoption of resolutions.x
The Security Council, when dealing with disputes or situations likely to
endanger the maintenance of international peace and security (Chapter VI),
and when taking action under Chapter VII of the Charter, has repeatedly
made pronouncements on questions of human rights. Some examples will be
given in the paragraphs that follow.
In 1960, the Security Council had before it, for the first time, the question
of race conflict in South Africa, when it considered the complaint of a number
of Member States concerning the situation arising out of the large-scale
killings of unarmed and peaceful demonstrators against racial discrimination
and segregation in that country. The Council called upon South Africa to
abandon its policies of apartheid and racial discrimination and called for
arrangements that would help in upholding the purposes and principles of the
Charter (Security Council res. 134 (1960)). In a resolution adopted on 7
August 1963 the Council strongly denounced the policies of South Africa in its
perpetuation of racial discrimination as being inconsistent with the principles
contained in the Charter and contrary to South Africas obligations as a
Member of the United Nations. It called upon the Government of South
Africa to liberate all persons imprisoned, interned or subjected to other
restrictions for having opposed the policy of Apartheid (res. 181 (1963)). In a
resolution of 4 December 1963 the Council repeated its criticism and its
appeal and, in addition, stressed that the discriminatory and repressive mea-
sures are in violation of the Universal Declaration of Human Rights. The
Security Council also requested the Secretary-General to establish a small
group of recognized experts to examine methods of resolving the situation in
South Africa through full, peaceful and orderly application of human rights
and fundamental freedoms of all inhabitants regardless of race, colour and
creed. (Council res. 182 (1963)). On 18 June 1964, in a resolution in which it
again invoked, inter alia, the Universal Declaration, the Security Council
endorsed the main conclusion of the Group of Experts appointed by resolu-
tion 182 (1963) that all the people of South Africa should be brought into
consultation and thus be enabled to decide the future of their country at the
national level (res. 191 (1964)). Thus the Security Council endorsed a pro-
gramme for the fundamental restructuring of a Member State in order to
bring its public institutions in line with the human rights provisions of the
Charter. In a number of resolutions adopted throughout the 1970s the Coun-
cil reaffirmed its earlier resolutions and recognized the pursuance of their
human and political rights as set forth in the Charter and in the Universal
Declaration.
While the major concern of Security Council decisions on the question of
apartheid has been human rights, its primary concern in dealing with the
question of Namibia (South West Africa) has been the international status of
that country. However, the Councils decisions on Namibia also contain strong
human rights elements. In 1968, in noting the General Assemblys termina-
tion of South Africas Mandate over Namibia (G.A. res. 2145 (XXI) of 1966),
the Council addressed itself to a human rights matter by calling upon South
Africa to discontinue an illegal trial of Namibians in a South African court and
to release and repatriate the persons concerned (Council res. 245). In a 1972
resolution it strongly condemned repressive measures against African labourers
in Namibia and called upon the South African government to abolish any
system of labour which did not respect the provisions of the Universal Declara-
tion of Human Rights (res. 310). It also called upon all States whose nationals
and corporations are operating in Namibia to use all available means to
ensure that such nationals and corporations conform in their hiring policies to
the basic provisions of the Universal Declaration of Human Rights. This may
be considered an instance of enforcement of the Universal Declaration by the
Security Council, which treated respect for the basic provisions of the Declara-
tion as a legal obligation of States as well as of their nationals.
In 1976, the Security Council condemned the continued illegal occupation
of Namibia by South Africa and the latters illegal and arbitrary application of
racially discriminatory and repressive laws and practices in Namibia (res.
385). The Council also demanded that, pending the transfer of power to the
UN so that free elections can be held, South Africa should comply fully in
spirit and in practice with the provisions of the Universal Declaration.
In 1977, the Council determined that the acquisition by South Africa of
arms and related material constitutes a threat to the maintenance of interna-
tional peace and security and decided that all States should cease any arms-
related trade and co-operation with South Africa (res. 418). In 1979, the
General Assembly repeated its previous call for the Council to impose com-
prehensive and mandatory sanctions against South Africa in order to ensure

its compliance with UN resolutions (G.A. res. 34/92 G).
An example of strong action by the Security Council in a human rights
related matter is its imposition of mandatory sanctions against the illegal
minority regime in Southern Rhodesia (Zimbabwe) (Council res. 232 of 1966
and 253 of 1968). It was the first time in UN history that such sanctions had
been imposed. Following the 1979 Lancaster House agreement on the resolu-
tion of the Zimbabwe issue, the Security Council called upon Member States
to lift their sanctions (res. 460 of 1979).
A recent instance of Security Council action in a situation partly involving
human rights questions was the adoption of a resolution calling upon Iran to
immediately release the personnel of the United States Embassy who were
being held in Teheran, to provide them protection and to allow them to leave
the country (res. 457 of 1979).
(j). Trusteeship Council

The Trusteeship Council is a principal UN organ, set up to assist the General
Assembly, under whose authority it operates, in carrying out its functions
relating to the International Trusteeship System provided for in Chapter XII
of the Charter. One of the basic objectives of the system is to encourage
respect for human rights and fundamental freedoms for all without distinc-
tion as to race, sex, language or religion.
Eleven Trust Territories have been administered under the system but by
1980 only one remained-that of the Trust Territory of the Pacific Islands,
administered by the United States. This is administered by the Trusteeship
Council, under the authority of the Security Council rather than the General
Assembly, because it has been designated a strategic area in accordance with
the relevant provisions of the Charter. Since termination of the final trustee-
ship is expected soon, the provisions of the Charter relating to the Trustee-
ship Council do not warrant lengthy consideration. They are now principally
of historical interest.
Article 87 of the Charter provides that the General Assembly and, under
its authority, the Trusteeship Council, in carrying out their functions, may:
consider reports submitted by the administering authority; accept petitions
and examine them in consultation with the administering authority; provide
for periodic visits to the respective Trust Territories; and take these and
other actions in conformity with the terms of the trusteeship agreements.
The administering authority for each Trust Territory within the competence
of the General Assembly is required to make an annual report to the Assem-
bly (Art. 86). Among the basic objectives of the system, in addition to the
promotion of human rights, are: the promotion of the political, economic,
social, and educational advancement of the inhabitants; and the progressive
development of the Trust Territories towards self-government or indepen-
dence (Art. 76).
(k). Secretariat
The Secretariat is one of the principal organs of the UN and comprises the
Secretary-General and such staff as the Organization requires. The Secretary-
General is the UNs chief administrative officer and acts in that capacity in
meetings of all UN organs. He is also required to perform whatever other
functions are entrusted to him by those organs (Articles 97-101 of the Char-
ter). Thus the human rights organs of the UN are serviced by the Secretar-
iat. The primary organizational unit in this field within the Secretariat is the
Division of Human Rights which, in 1974, was transferred from New York to
Geneva. The Division provides secretarial services to such bodies as the
Third Committee of the General Assembly, the Economic and Social Council
and its Social Committee, the Commission on Human Rights and its Sub-
Commission, the Committee on the Elimination of Racial Discrimination, the
Human Rights Committee, and a variety of subsidiary bodies. It also: carries
out research at the request of these organs; handles materials and prepares
reports under procedures for monitoring the implementation of human rights
established by various UN organs or included in international instruments;
collects and disseminates information and prepares publications on human
rights; and administers the programme of advisory services.
In the early years of the UN, the Division of Human Rights was part of the
Department of Social Affairs. This was changed in 1958 and again in 1972.
The Division presently reports to the UN Under Secretary-General for Polit-
ical and General Assembly Affairs. The General Assembly in 1979 (res. 34147)
and the Commission on Human Rights in 1980 (res. 22 (XXXVI)) has re-
quested the Secretary-General to consider redesignating the Division as a
Centre for Human Rights. The effect of such a change would be increased
status within the Secretariat.
The Commission on the Status of Women was, until 1972, serviced by a
Section within the Division of Human Rights. Since that time these duties
have been performed by the Advancement of Women Branch of the Centre
for Social Development and Humanitarian Affairs in the Department of Eco-
nomic and Social Affairs. This branch was transferred from New York to
Vienna in 1979.
Other parts of the Secretariat also contribute to the human rights work of
the organization. Thus the Office of Legal Affairs is responsible for advising
the Secretariat and other organs on legal questions and the Department of
Political and Security Council Affairs, the Department of Political Affairs,
Trusteeship and Decolonization and the Office of Public Information also
perform important functions in matters which relate to human rights.
(i) T~GOODOFFI~~ROLE~FTHE SECRETARY-GENERAL
It is established diplomatic practice that Heads of State and executive heads

of intergovernmental organizations are entitled to intercede on humanitarian
grounds with their counterparts involved in particular situations. Such inter-

cession may be aimed at drawing attention to the plight of a particular indi-
vidual or group and is undertaken in a spirit of mutual respect and confidentiality.
It is thus to be distinguished from interference in the internal affairs of
States, a practice which is prohibited under Article 2 (7) of the UN Charter.
The nature of the humanitarian intercession and the extent to which a matter
is pursued vary according to the circumstances of each particular case. While
it is common knowledge that the UN Secretary-General uses his good of-
fices in efforts to achieve humanitarian objectives in line with the principles
of the UN Charter, reference to specific action of this nature has, until
recently, been included only infrequently in resolutions or other public ac-
tions of UN organs. However, in recent years, the Secretary-General has
been called upon on a number of occasions to continue and intensify the good
offices envisaged in the Charter of the United Nations in the field of human
rights.3Y In 1979, the General Assembly also stressed the important role that
the Secretary-General can play in situations of mass and flagrant violations of
human rights (res. 34/175). The Commission on Human Rights has also re-
quested the Secretary-General to use his good offices to ensure the full en-
joyment of human rights by UN staff members (res. 31 (XXXVI)( 1980)). In
his report to the UN, Secretary-General Waldheim noted that, because of the
nature of the problem, little or nothing can be said publicly about the efforts
made in the exercise of his good offices function. Past experience has dem-
onstrated that it is best to proceed on purely humanitarian grounds, and
usually with the utmost confidentiality. Not only does this approach work to
the advantage of the victims, but it also avoids the political sensitivity often
associated with such cases,4o However, as the Secretary-General observed
in 1979, a cautious approach should not be allowed to degenerate into expedi-
ency on so vital a matter of principle (M34DAdd.l).
(ii) ANNUAL REPORTS OF THE SECRETARY-GENERAL ON THE WORK OF THE

ORGANIZATION
These annual reports review developments in the various fields of UN activi-

ties and regularly include a section devoted to human rights questions. In
addition, an Introduction to the Report is issued, in which the Secretary-
General has often expressed his views on human rights issues.
Thus in 1970, U Thant drew aMention to the growing problem of torture
and noted that it is imperative for all States and groups to denounce such
despicable practices (A/8001/Add. 1). The following year the Secretary-General
focussed on the problem of human rights violations within the frontier of a
State. He observed that theoretically the United Nations has little standing
in such situations-and they are all too common. Legally the membership of
the United Nations has done an admirable job on human rights. The neces-
sary texts exist. But practically where does an individual or a group of
individuals find recourse against oppression within their own country? In
response he noted the importance of world public opinion and called for a
determined effort to give justice a world-wide dimension (A844VAdd.l).
Secretary-General Waldheim has drawn attention on several occasions to
the problem of reconciling the principle of national sovereignty with the
ideals expressed in the Universal Declaration.41 In 1977 he stated that the
fundamental principle is that the respect for individual human dignity is
based on universally accepted values and therefore abuses of human rights,
wherever they may occur, are a legitimate subject for international concern.
(A/32/i/Add. 1).
(1). International Court of Justice

The ICJ is the principal judicial organ of the UN and its Statute forms an
integral part of the UN Charter. In the present manual it is not proposed to
undertake a comprehensive survey of the role and practice of the Court. In
brief, only States may be parties in contentious cases before the Court but
the Court may be requested by the General Assembly, the Security Council,
and by other organs authorized by the Assembly, to give an advisory opinion
on legal questions. Thus individuals and non-governmental organizations do
not have access to the Court.
The Court has frequently been called upon to examine human rights ques-
tions, both in contentious and in advisory proceedings. In some cases the
Court has had to address itself directly to the interpretation of a human
rights treaty. In other cases human rights questions have arisen indirectly.
An example of the former group are the Colombian-Peruvian asylum case
in 19504 and its sequel, the Haya de la Torre case of 1951,4 in which the
Court had to decide a dispute concerning diplomatic asylum and to interpret
the Convention on the Right of Asylum signed at Havana in 1928.44
Between 1950 and 1971 the Court rendered four advisory opinions relating
to the international status of South-West Africa (Namibia). It was also pre-
sented with a dispute relating to the same subject in contentious proceedings
instituted by Ethiopia and Liberia against South Africa, in which a judgment
on preliminary objections (1962) and a judgment (Second Phase 1966) were
rendered. These advisory opinions and judgments contained strong human
rights elements, while the actual holdings related primarily to other ques-
tions such as whether South-West Africa had remained a territory under
Mandate after the dissolution of the League of Nations and whether South
Africa remained bound by the obligations of a Mandatory: whether the United
Nations was the successor to the League as supervising authority; whether
Ethiopia and Liberia as former Members of the League of Nations had locus
standi in regard to the fulfilment by the Mandatory of its obligations under
the Mandate; and whether South Africas Mandate had been legally and
validly terminated by the General Assembly in 1966.45 In the last of the
advisory opinions, which was rendered at the request of the Security Council
in 1971, the Court found that the General Assemblys conclusion that South
Principal Institutions Pounded Under the Charter 267
Africa had failed,to fulfil its obligations in respect of the administration of the
Mandated Territory and the termination of the Mandate were justified be-
cause, inter alia, through its policy of apartheid South Africa had committed
flagrant violation of the purposes and principles of the Charter.
The advisory opinions on the Interpretation of Peace Treaties of March
1950 and (Second Phase) of July 195046were requested by the General As-
sembly because of its continuing interest and its increased concern at the
grave accusations made against Bulgaria, Hungary and Romania with regard
to the observance of human rights and fundamental freedoms in these coun-
tries. (G.A.res. 294 (IV) of 22 October 1949). The questions put to the Court
did not concern the substance of the human rights situation in the three
countries, but primarily their obligation to appoint representatives to Com-
missions which, under the three Peace Treaties, were competent to decide the
disputes.
The request for the advisory opinion on reservations to the Genocide Con-
vention (1951) was directed towards receiving advice on the admissibility of
certain reservations to that Convention. 47 In its opinion the Court proceeded
from its finding that the principles underlying the Convention are principles
which are recognized by civilized nations as binding on States even without
any conventional obligation. In 1970, the Court had the opportunity to affirm,
and to elaborate upon, this statement. In its judgment in the Barcelona
Traction Case4s between Belgium and Spain (Second Phase), the Court dis-
tinguished between obligations which States have erga omnes and obliga-
tions the performance of which is the subject of diplomatic protection.
Obligations erga omnes derive, for example, in contemporary international
law, from the outlawing of acts of aggression and of genocide, as also from the
principles and rules concerning the basic rights of the human person, includ-
ing protection from slavery and racial discrimination. Some of the corres-
ponding rights of protection have entered into the body of general international
law; others are conferred by international instruments of a universal or quasi-
universal character.
In the advisory opinion on the effect of awards of compensation made by
the UN Administrative Tribunal of 1954, 4gthe International Court of Justice
stated that the General Assembly had not, under the law as it then stood, the
right on any grounds to refuse to give effect to an award of compensation
made by the Administrative Tribunal in favour of a staff member of the
United Nations whose contract of service has been terminated without his
assent. The Court replied to the General Assemblys request for an opinion
notwithstanding the fact that the questions submitted to it closely concerned
the rights of individuals. The mere fact that it is not the rights of States
which are at issue does not deprive the Court of a competence expressly
conferred on it by its Statute.
In the opinion concerning judgments of the Administrative Tribunal of the
IL0 upon complaints made against Unesco5 (1956), the Court upheld its
competence to entertain a request for an advisory opinion for the purpose of

reviewing judicial proceedings involving individuals.
In 1955, by resolution 957 (X) the General Assembly amended the Statute
of the United Nations Administrative Tribunal by providing that a Member
State, the Secretary-General or a person in respect of whom a judgment has
been rendered by the Tribunal, may object to the judgment on certain speci-
fied grounds by a written application addressed to a Committee of the Gen-
eral Assembly asking it to request an advisory opinion of the International
Court of Justice on the matter. The grounds for applying to the Committee
are that the Tribunal: has exceeded its jurisdiction or competence; has failed
to exercise jurisdiction vested in it; has erred on a question of law relating to
the provisions of the Charter; or has committed a fundamental error in pro-
cedure which has occasioned a failure of justice. The Committee is composed
of the Member States the representatives of which have served on the Gen-
eral Committee of the most recent regular session of the General Assembly.
If the Committee decides that there is a substantial basis for the application
it shall request an advisory opinion of the Court. When such a request has
been made, the Secretary-General shall either give effect to the opinion of
the Court, or request the Administrative Tribunal to confirm its original
judgment or give a new judgment, in conformity with the opinion of the
Court. By 1973, sixteen applications had been made to the Committee for the
review of judgments of the Tribunal, but only in regard to one had the
Committee decided that there was a substantial basis for the application and
only that one reached the Court. The Court held that it was competent to
give the opinion and that there was nothing in the system of judicial review
established by General Assembly resolution 957 (X) which is incompatible
with the general principles governing the judicial process. The Court also
decided, as in the earlier case of Unesco in 1956, not to hold a public hearing
for the purpose of receiving oral statements in order to safeguard the equal-
ity of the parties. In its Advisory Opinion of 12 July 1973 ,51the Court found
that the Administrative Tribunal had not failed to exercise the jurisdiction
vested in it and that it had not committed a fundamental error in procedure
which had occasioned a failure of justice.
In the two nuclear test cases, both involving France ,52the International
Court of Justice held that the claims of Australia and New Zealand no longer
had any object and that the Court was therefore not called upon to give a
decision thereon. In his Separate Opinions in both cases Judge Petren re-
called, in connection with the locus standi of the Applicant States, previous
developments in the domain of human rights and referred, albeit with a
certain reservation, to the statement of the Court in the Barcelona Traction
Case, which listed violations of basic rights of the human person as creating
obligations erga omnes of the States concerned. Judge ad hoc Sir Garfield
Bar-wick also referred in his Dissenting Opinions to what he described as the
obiter dictum in the Barcelona Traction Case.
In December 1979, in the case concerning United States Diplomatic and

Consular Staff in Teheran, the Court made an Order in which it indicated
provisional measures which should be taken by the government of the Islamic
Republic of Iran pending the Courts final decision in the case. The Court
decided that the government of Iran had violated a number of its interna-
tional legal obligations and that, inter alia, it should immediately secure the
release of the hostages.53
Jurisdiction of the International Court of Justice in disputes concerning the

interpretation and application of human rights conventions of the UN system.
Most but not all human rights conventions which have come into being
under the auspices of the United Nations and the specialized agencies contain
provisions-the specific wording differs from instrument to instrument-to
the effect that any dispute between States Parties to the Convention which
relates to its interpretation or application and which cannot be settled by
other means shall be referred to the International Court of Justice at the
request of any one of the parties to the dispute.
However, the International Covenants on Human Rights do not specific-
ally provide for adjudication by the Court. The draft of the International
Covenant on Civil and Political Rights prepared by the Commission on Human
Rights in 1954 provided that the Covenants implementing body, the Human
Rights Committee should recommend to the Economic and Social Council
that the Council request the Court to give an advisory opinion on any legal
questions connected with a matter of which the Committee is seized (E/2573).
This provision was deleted by the Third Committee of the General Assembly
in 1966 (A/6546).
2. PROCEDURES USED AND ACTION TAKEN BY UNITED

NATIONS ORGANS IN HUMAN RIGHTS MATTERS
(a). Consideration of violations and communications relating thereto

The United Nations is variously estimated to receive annually between 30,000
and 40,000 communications or complaints alleging human rights violations. In
order to deal with these complaints a number of different procedures has
been established. For analytical purposes a distinction may be drawn be-
tween petition-recourse and petition-information procedures both of which
are briefly discussed below.54 Petition-recourse procedures are those which
require the consideration and disposal of complaints on a case by case basis.
The primary objective of petition-information procedures is to facilitate the
accumulation of information relating to a general situation concerning a class
of persons such as missing persons or those living under the system of
apartheid. But, as Tardu notes, the distinction is not at all sharp since each
system may bring relief to both individuals and classes.
The following analysis does not deal with the very important communica-
tions procedures established under (a) the Optional Protocol to the Interna-
tional Covenant on Civil and Political Rights or (2) the Convention on the
Elimination of All Forms of Racial Discrimination. Both of these are analysed
in Chapter 11.
1503 (XLVIII)
When the Commission on Human Rights convened for its first regular ses-
sion in January 1947, a great number of letters addressed to the United
Nations or any of its organs had already been received, many of which con-
tained complaints about the violation of human rights. On the recommenda-
tion of a Sub-Committee which it had appointed to look into the question of
what to do with, or in regard to, these communications, the Commission
decided upon a procedure which, as later modified in technical details, in-
volved the compilation and distribution to members of the Commission of two
lists of communications: (i) a non-confidential list containing a brief indica-
tion of the substance of each communication which deals with the principles
involved in promotion of respect for and observance of human rights, and (ii)
a confidential list containing a brief indication of the substance of other
communications concerning human rights and furnish this list to members of
the Commission in private meeting. The other communications include, of
course, communications alleging that human rights have been violated. The
report of the first session contained, in this context, the statement that The
Commission recognizes that it has no power to take any action in regard to
any complaints concerning human rights.55 This statement was approved by
the Economic and Social Council in its resolution 75(V) of 5 August 1947 and
the approval was repeated in a consolidated resolution on communications
concerning human rights which the Council adopted in 1959 (Council resolu-
tion 728 F (XXVIII) of 30 July 1959).
The Commission on the Status of Women, whose constitutional status is, as
shown above, the same as that of the Commission on Human Rights, refused
to adopt an analogous self-denying ordinance. On the contrary, it asked that
its right to make recommendations to the Council on urgent problems requir-
ing immediate attention in defence of womens rights be strengthened and it
also asked for an improvement of the rules governing communications.56
ECOSOC decided, however, contrary to the wish of the Commission on the
Status of Women that it, the Council, recognizes that, as in the case of the
Commission on Human Rights, the Commission on the Status of Women has
no power to take action in regard to any complaints concerning the status of
women (res. 76 (V) of 5 August 1947). Resolution 76 (V) was later amended,
as was resolution 75 (V), to provide for separate non-confidential and conti-
dential lists (Council res. 3041 (XI) of 1950).
Criticism and attempts at reform,.

The decisions taken by the Commission on Human Rights and by the
Council met with widespread criticism. The two Sub-Commissions, whose
members were persons serving in their individual capacity and not as gov-
ernment representatives, recommended amendments of Council resolution
75 (V), which would make it possible to take action in certain cases.57 In
regard to the recommendations of the Sub-Commission on Discrimination
and Minorities, the Commission on Human Rights decided not to sanction
any change in the procedure. 58 As far as the recommendations of the Free-
dom of Information Sub-Commission were concerned, the Economic and So-
cial Council approved the proposal for the compilation twice a year of a list of
communications on freedom of information, but expressly decided that this
was not to apply to communications which contained criticism or complaints
against Governments in the field of freedom of information (Council resolu-
tion 240 C (IX) of 28 July 1949).
Even before the two Sub-Commissions had made their unsuccessful at-
tempts, the Secretary-General took the matter up with a view to contribut-
ing to an improvement of the arrangements. He submitted to the Commission
on Human Rights a report on the present situation with regard to communica-
tions concerning human rights (Dot. E/CN.4/165,2 May 1949) the principal
recommendation of which was that the Commission should propose to the
Council to amend its resolution 75 (V) of 1947 to the effect that, in particular
cases affecting very great numbers of persons or having international reper-
cussions, the Commission should be requested to examine the communication
and the reply which might be given by the Government concerned and bring
to the attention of the Council cases which, in the opinion of the Commission,
merit the attention of the Council. The Commission on Human Rights took no
action on these lines at the time. Arrangements of a similar character were,
however, planned and enacted two decades later, as will be seen below when
the procedures for the consideration of allegations of a consistent pattern of
gross violations of human rights will be examined.
The no power to take action doctrine proclaimed by the Commission and
ECOSOC was also the object of very severe scholarly criticism, particularly
by Professor Hersch Lauterpacht. In his report (para. 12) the Secretary-
General drew the Commissions attention to Lauterpachts writings which
had appeared by then.59
Between 1949 and 1959, individual Governments and groups of Govern-
ments made repeated attempts to bring about a change in the ruling that the
Commission on Human Rights had no power to act on complaints of the
violation of human rights. Thus, for example, at the 6th session in 1951/1952,
the General Assembly invited the Council to give the Commission on Human
Rights instructions with regard to communications and to request the Com-
mission to formulate its recommendations on them (G.A. res. 542 (VI) of
1952), thus clearly indicating that it considered the then existing situation
unsatisfactory. The Council refused to pursue this directive and decided to
take no action (Council res. 441 (XIV) of 1952). The General Assembly action
had been sponsored by Egypt. On later occasions, Argentina, Belgium, Greece,
India, Israel and the Philippines, in addition to Egypt, made equally unsuc-
cessful attempts.O
Repeal or modification of the no power to act doctrine.

The no power to act doctrine was bound to collapse under the impact of
the increasing force of the struggle against racial discrimination in colonial
territories and in southern Africa. It was the Special Committee on the
Situation with regard to the Implementation of the Declaration on the Grant-
ing of Independence to Colonial Countries and Peoples (the Committee of
Twenty-Four) which, in 1965, set in motion the events which led to the
breach in the no power to act doctrine and eventually to the new proce-
dures set forth in Council resolution 1235 (XLII) of 1967 and 1503 (XLVIII)
of 1970 which will be described presently. The Committee of Twenty-Four
drew attention to the evidence submitted by petitioners concerning viola-
tions of human rights in certain territories in southern Africa, whereupon the
same Economic and Social Council which had consistently ruled that the
Commission on Human Rights has no power to act on violations of human
rights, invited the Commission to consider as a matter of importance and
urgency the question of the violation of human rights, including policies of
racial discrimination and segregation and of apartheid in all countries, with
particular reference to colonial and other dependent countries and territo-
ries, and to submit its recommendations on measures to halt those violations
(Council res 1102 (XL) of 1966). The task of devising the principles and
procedures which were to apply in the performance of this new assignment
occupied the Sub-Commission, the Commission on Human Rights, ECOSOC
and the General Assembly for the following five years (1966 to 1971). It is not
proposed to present here a complete legislative history of the texts which
were eventually adopted. Only several important stages will be mentioned.
(1) The General Assembly invited the Council and the Commission to give
urgent consideration to ways and means of improving the capacity of the
United Nations to put a stop to violations of human rights wherever they may
occur (G.A. res. 2144 A (XXI), para 12, of 1966), thus confirming that the
new activities should not be restricted to dependent territories and to ques-
tions of racial discrimination.
(2) The Commission decided by resolution 8 (XXIII) adopted in March
1967, to give annual consideration to the question of violations of human
rights and fundamental freedoms, including policies of racial discrimination
and segregation and of apartheid, in all countries, with particular reference
to colonial and other dependent countries and territories. It requested the
Sub-Commission to prepare, for the use of the Commission in its examination
of this question, a report containing information on violations of human rights

from all available sources and to bring to the attention of the Commission any
situation which it has reasonable cause to believe reveals a consistent pattern
of violations of human rights and fundamental freedoms. (E/4322 (1967) para.
394).
(3) In resolution 1235 (XLII) of 6 June 1967 ECOSOC noted resolution 8
(XXIII) of the Commission on Human Rights and welcomed its decision. It
proceeded to make a final break with the no power to act doctrine of
resolution 75 (V) of 1947. It, inter alia, authorized the Commission and the
Sub-Commission to examine information relevant to gross violations of human
rights and fundamental freedoms, as exemplified by the policy of apartheid
as practised in. South Africa and in. South West Africa.. ., and to racial
discrimination as practised notably in Southern Rhodesia, contained in com-
munications listed by the Secretary-General pursuant to Economic and So-
cial Council resolution 728 F (XXVZZZ) . (emphasis added). In the same
resolution, the Council decided that the Commission may, in appropriate
cases, make a thorough study of situations which reveal a consistent pattern
of violations of human rights as exemplified by the policies of apartheid and
racial discrimination in Southern Africa.
(4) These decisions having been taken, the organs addressed themselves
to prescribing procedures through which the Commission on Human Rights
would perform the new task, particularly how and by whom the very great
number of allegations constantly coming in should be screened, how and by
whom those worthy of being examined should be selected, how and by whom
controversial facts should be established and what the role of Governments in
this enterprise should be. On the basis of a draft prepared by the Sub-
Commission and the Commission and after, in 1969, the draft had been re-
ferred back to the Commission by the Council and transmitted to States
Members for consideration and comment, the Council adopted resolution
1503 (XLVIII) of 27 May 1970 on the Procedure for dealing with communi-
cations relating to violations of human rights and fundamental freedoms.
(5) In paragraph 2 of resolution 1503 the Council delegated to the Sub-
Commission the task of devising appropriate procedures for dealing with the
question of admissibility of communications received under Council resolu-
tion 728 F (XXVIII) and in accordance with Council resolution 1235 (XLII).
In 1971, the Sub-Commission in its resolution 1 (XXIV) adopted provisional
rules for dealing with the question of admissibility.
(6) Thus, the United Nations procedures for dealing with communications
relating to the violation of human rights are laid down in a body of provisions
which consists of resolutions 1235 (XLII) and 1503 (XLVIII) of the Economic
and Social Council and of the provisional rules adopted by the Sub-Commission
in resolution 1 (XXIV). Resolution 728 F (XXVIII), i.e. the revised version
of resolution 75 (V), has remained in force, apart from those of its provisions
which have pro tanto been repealed by resolutions 1235 and 1503.
(ii) STAGES 0F THE PROCEDURE UNDER RESOLUTIONS 728 F, 1235 AND 1503~~
(1) Provided that a communication is intended for the UN (however ad-

dressed, in the words of Council res. 728 F (XXVIII)), it is eligible for
consideration, irrespective of its form. Those communications which are clearly
intended for submission to the Human Rights Committee under the Optional
Protocol and which appear to fulfil1 the conditions for receivability laid down
in the Protocol are not channeled into the 1503 procedure.
(2) The remaining communications are screened by a five-member Work-
ing Group on communications of the Sub-Commission on Prevention of Discrim-
ination and Protection of Minorities. It refers to the Sub-Commission those
communications which appear to reveal a consistent pattern of gross and
reliably attested violations of human rights. The Sub-Commission considers
these along with the replies, if any, of governments, and determines, on the
basis also of all other relevant information, which particular situations (as
opposed to individual communications) it will refer to the Commission. Since
1974 the Sub-Commission has annually communicated its findings to the Com-
mission in confidential reports containing all relevant materials.
(3) Since 1974 the practice of the Commission has been to establish its own
working group to examine the materials submitted by the Sub-Commission.
In 1978 it formally decided to invite the States directly concerned to address
the Commission and to reply to questions put by members (Commission
decision 5 (XXXIV)).
(4) Under resolution 1503 the Commission can, in relation to any situation
referred to it by the Sub-Commission:
(a) decide not to act;
(b) decide to discontinue consideration under 1503 and to consider the
situation under another procedure;
(c) decide to undertake a thorough study of the situation in accordance
with resolution 1235 (XLII) of 1967. The making of such a study is not
conditional upon the consent of the government(s) concerned or of any higher
UN organ. This was done in 1979 in the case of Equatorial Guinea (res. 15
(XXXV)); or
(d) decide on an investigation by an ad hoc committee. This alternative is
dependent on the express consent of the State concerned, requires the prior
exhaustion of all domestic remedies and must not relate to a matter already
being dealt with under other UN or regional procedures. The ad hoc commit-
tees procedure and all actions envisaged in the implementation of the resolu-
tion in general shall be confidential. The ad hoc committee shall report to the
Commission with its observations and suggestions and on the basis of this
report the Commission may decide to make recommendations to the Council.
(5) It should be noted that resolution 1503 provides that all actions en-
visaged in its implementation shall remain confidential until such time as the
Commission may decide to make recommendations to the Economic and So-
cial Council. Thus the meetings of all relevant bodies are held in private and
their records and all other documents relating thereto are confidential. A
major development facilitating better public knowledge of how the procedure
works occurred in 1979 when the Commission decided, in the case of Equato-
rial Guinea, to discontinue confidential consideration under the 1503 proce-
dure and to make public all the relevant, previously confidential, materials.j
(6) Resolution 1503 is silent about the action which the Economic and
Social Council might take when it receives a recommendation from the Com-
mission on Human Rights. This question is regulated in Article 62 (1) and (2)
of the United Nations Charter. Since 1948, it has been well established that
the Councils authority to make recommendations under Article 62 is by no
means restricted to making general recommendations. The Council has the
power, and has repeatedly made use of it, to address recommendations to
individual Members of the United Nations.
(iii) RELATIONSHIPB~TW~~NTHISPROCEDUR~AN~OTHERRESPONSESTOHUMAN
RIGHTSVIOLATIONS
Considerable debate has taken place in the Commission on the question of the
relationship between the procedure under resolutions 728 F, 1235 and 1503
and the Commissions consideration of other human rights situations. While
certain procedural problems have arisenj4 it is clear both from the resolutions
of the General Assembly (res. 2144 (XXI) (1966)) and ECOSOC and on the
basis of the consistent practice of the Commission that it has a general com-
petence to examine questions of human rights violations. Thus, later in this
chapter, consideration is given to a variety of measures which have been
taken in the field of fact-finding, the preparation of studies and other areas in
response to violations. The Commission determines for itself whether to
consider particular situations publicly or confidentially. As long as all action
envisaged in the implementation of the 1503 procedure remains confidential,
there would seem to be no restriction on the Commissions competence to
consider publicly the human rights situation in any country. To facilitate this
confidentiality, the Chairman of the Commission has, in each year since 1978,
prior to the Commissions public debate on violations, publicly announced the
names of the countries in respect of which the Commission has taken confi-
dential decisions. However, neither the nature of the decisions nor the infor-
mation on which they are based have been disclosed. Nevertheless, it would
appear that a situation in a particular country which has been dealt with
under the 1503 procedure could be publicly discussed by the Commission.
One further matter which warrants consideration is the competence of the
Commission to intervene on behalf of individuals. While the Commission has
taken such action in regard to imprisoned Black leaders in South Africa
(decision 2 (XxX111) (1977)) and politicians detained in Chile (decision 1
(XxX11) (1976)) this has occurred in the context of situations already identi-
fied as constituting consistent patterns of gross violations of human rights. In
1980 the question was considered at length by the Commission in connection

with a proposal to send a telegram to the Government of the USSR concern-
ing the case of Mr. Andrei Sakharov who was alleged to have been removed
from his home in Moscow and confined in Gorki.j5 The Commission eventu-
ally adopted a compromise decision to defer consideration of the matter to its
following session (decision 11 (XXXVD(1980)). At the same session, the Com-
mission adopted one resolution appealing to all Governments to encourage
and support individuals to promote the effective observance of human rights
(resolution 23 (XXXVI)) and another calling upon Governments to ensure the
strict application of principles governing the fundamental safeguards of the
individual so that no one can be prosecuted or persecuted merely because of
his family or other connection with a suspected, accused or convicted person
(resolution 26 (XXXVI)).
(iv) SHORTCO~VIING~~FTHE UNITEDNATIONSPROCEDURES
Despite the complexity of these various procedures and the amount of effort
and debate expended on their inevitably flawed design, a large number of
criticisms may be levelled against the results they have achieved. Some
indication of these was provided by the Director of the UN Division of Human
Rights in his opening statement to the Commission in 1980:
Our experience so far leads me to ask. whether some of the assumptions under which we
have been working are still valid. Is it satisfactory to place so much emphasis on the
consideration of situations in confidential procedures thereby shutting out the international
community and oppressed peoples? Are certain procedures in danger of becoming, in effect,
screens of confidentiality to prevent cases discussed thereunder from being aired in public?
While there is probably no alternative to trying to co-operate with the Governments
concerned, should we allow this to result in the passage of several years while the victims
continue to suffer and nothing meaningful is really done? How can we deal with govern-
ments which do not act in good faith or abuse the procedures of the Commission by pretend-
ing to co-operate while in fact violations of human rights continue to take place?
Aside from these questions relating to what we have been doing, there are questions as to
what we have probably not been doing at all. How, for example, do we handle urgent
situations, particularly between sessions of the Commission? The Commission plans to
consider in the future the role which its Bureau could play in this area. Perhaps something
meaningful may arise out of this.
How do we identify situations of violations for the attention of the Commission? Is this
left too much to political convenience? Is there a case for the Commission to request annually,
probably from one of its members acting as special rapporteur, a World Report on Human
Rights to form the basis of its consideration of the item on violations of human rights?.
Furthermore, after the Commission has identified a situation as being one about which it
should act, to what extent does it apply measured or balanced criteria in deciding upon the
response to the situation? Is the decision to be taken left too much to individual governmen-
tal initiative, or is there a role for the Bureau of the Commission in weighing and measuring
the response to be made?66
Many of the problems thus identified have not arisen accidentally. The
1503 procedure has met and will continue to meet with opposition on the part
of powerful and influential governments. Only when this opposition is countered

by a preponderance of world public opinion and a determined stand by con-
cerned governments will the ability of the UN to respond promptly, effec-
tively and objectively to human rights violations be ensured.
(V) COMMUNICATIONS CONCERNING THE STATUS OF WOMEN
It will be recalled that the Economic and Social Council, by resolution 76 (V)
of 1947, amended by resolution 304 (XI) of 1950, adopted rules for the han-
dling of communications concerning human rights as laid down in resolution
75 (V) of 1947. When, in 1959, resolution 75 (V) was replaced by a consoli-
dated text in resolution 728 F (XXVIII), no corresponding adjustments were
made in resolution 76 (V), but the substance of the regulations applicable to
the two Commissions remained the same. However, when by resolutions
1235 (XLII) and 1503 (XLVIII) fundamental changes were introduced in
regard to human rights communications which appear to reveal a consistent
pattern of gross and reliably attested violations of human rights and funda-
mental freedoms, no provision was made for the Commission on the Status of
Women to be involved in the procedures. Nevertheless, as far as substance is
concerned, gross violations consisting of discrimination on the grounds of sex
are not outside the competence of the organs actually charged with the im-
plementation of the procedures.7
Under resolution 76 (V) the Commission on the Status of Women dealt
with the item communications concerning the status of women in a routine
way: it appointed a Committee on Communications, decided that the origi-
nals of the communications in the non-confidential list should be made avail-
able to all members at their request, and received and took note of the
confidential list at a closed meeting. However, in 1970 and 1972, the commu-
nications item did not appear on the Commissions agenda at all. In 1974, the
Commission decided by majority vote after lengthy debate no longer to con-
sider communications (E/5451) in view of the establishment of the 1503 pro-
cedure. However, ECOSOC withheld its endorsement of this decision and, in
1975, invited the Commission to reconsider (res. 86 (LVIII)). The latter
effectively reversed its decision in 1976 (E/5909, chap. 1, draft res. X) but
ECOSOC took no further action until 1980 when it requested both the Com-
mission on Human Rights and the Commission on the Status of Women to
submit their respective views on the matter to the Council in 1982 (Council
res. 1980/39).
In the meantime, the Secretariat, in 1980, issued, for the first time, a
comprehensive non-confidential list of all communications dealing with the
status of women received by the UN as a whole (EKN.6KR.25). It may also
be noted that the Convention on the Elimination of All Forms of Discrimi-
nation against Women, adopted by the General Assembly in 1979, contains
no provisions relating to the receipt or consideration of relevant communi-
cations.
(vi) OTHER UNITED NATIONS HUMAN RIGHTSPETITION PROCEDURES
In addition to the mechanisms for the consideration of communications which

have been discussed above, a wide range of UN bodies receives petitions or
communications relating to specific matters. In the present context, it is
proposed only to list the relevant bodies since all are considered elsewhere
either in the present or the following chapter. Although the mode of response
varies considerably from one to another, the mandate of each of the following
bodies enables it, inter alia, to receive and consider relevant petitions: (1)
the Ad Hoc Working Group of Experts on Human Rights in southern Africa;
(2) the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Population of the Occupied Territories; (3) the Ad Hoc Working
Group to inquire into the situation of human rights in Chile (terminated in
1979); (4) the Working Group on Enforced or Involuntary Disappearances;
(5) the Special Committee on the Situation with regard to the Implementa-
tion of the Declaration on the Granting of Independence to Colonial Countries
and Peoples; (6) the Special Committee against Apartheid; (7) the United
Nations Council for Namibia; (8) the Security Council; and (9) the Trustee-
ship Council.
Two other procedures, established under ECOSOC resolutions may also be
mentioned. In accordance with Council resolutions 277 (X) and 474 A (XV)
communications alleging infringements of trade union rights received from
Governments or trade union or employers organizations against IL0 Mem-
ber States are sent to the ILOs Governing Body which in turn considers
whether to refer the communication to the IL0 Fact-Finding and Concilia-
tion Commission. The second procedure, by which the UN Secretary-General
transmits any information received on forced labour to the IL0 Director-
General, was established by Council resolution 607 (XXI) of 1956.
(b). System of periodic reports on human rights

In resolutions adopted in 1949 and 1950 (210 (VIII) and 283 (X)) the Economic
and Social Council made arrangements for general reporting by States Mem-
bers on the implementation of recommendations on economic and social mat-
ters (the term social including human rights) but, considering the great
burden this scheme placed on both Governments and the Secretariat, it was
discontinued in 1952 (Council res. 450 (XIV)).
In 1950, the Commission on Human Rights requested that a system of
annual human rights reports by States be established (E/1681 para. 47) but
ECOSOC returned the proposal to the Commission for further study (res.303
E (XI) (1950)). In 1953 the idea, which had been proposed by France three
years earlier, received the strong support of the United States delegation in
the following circumstances: the Administration of President Eisenhower
declared in early 1953, in a statement by Secretary of State Dulles, radically
changing the policy of its predecessor, that it did not favour formal under-
takings as the proper way to achieve throughout the world the goals of
human liberty, and that it did not believe in treaty coercion and would
therefore not become a party to any covenant on human rights or sign human
rights conventions of a more limited scope.s As a substitute the United
States delegation proposed what it called a new programme of practical
action consisting of three series of activities: (a) periodic reporting by States;
(b) studies of specific rights or groups of rights; (3) advisory services in the
field of human rights. The United States representative on the Commission
on Human Rights proposed therefore at the 1953 session of the Commission
three draft resolutions relating to those three branches of its proposed pro-
gramme of practical action, including one on annual reports on human
rights (E/2447 paras. 263-68).
Later in 1953 the General Assembly (res. 739 (VIII)), in asking the Commis-
sion to prepare recommendations on the subjects of the three draft resolu-
tions, made clear that they would supplement and not replace the provis-
ions of the Covenants. This was reiterated in 1956 in Commission resolution I
which made it clear that a system of annual reports was a step proposed
without prejudice to the adoption and ratification of the Covenants on human
rights, including the measures of implementation provided therein.
On the basis of this recommendation of the Commission, the Council estab-
lished a system of period reports on human rights by its resolution 624 B
(XXII) of 1 August 1956.
Considering that the purpose of the resolution would best be served by
consolidating and reducing the frequency of the envisaged reports, it re-
quested States Members of the United Nations and of the specialized agen-
cies to transmit reports every three years. Each report was to describe
developments and the progress achieved during the preceding three years in
the field of human rights, and measures taken to safeguard human rights in
the metropolitan area of the reporting State and in its Non-Self-Governing
and Trust Territories; the report to deal with the rights enumerated in the
Universal Declaration of Human Rights and with the right of peoples to
self-determination.
In 1965 important changes in the reporting system as defined in 1956 were
introduced. By Resolution 1074 C (XxX1X) of 28 July 1965, the Council
called for submission of information within a continuing three-year cycle,
scheduled as follows: (a) in the first year, on civil and political rights; (b) in
the second year, on economic, social and cultural rights; and (c) in the third
year, on freedom of information.
Resolution 1074 C provided for the Sub-Commission on Prevention of Dis-
crimination and Protection of Minorities to study the materials received under
the reporting procedure and to report thereon with comments and recom-
mendations to the Commission. On the only occasion when the Sub-Commission
was called upon to act in performing this new assignment, in 1967, consider-
able difficulties arose. A Special Rapporteur of the Sub-Commission had been
requested to prepare a short study covering salient developments in human

rights during the period under review. In an annex to the study he presented
a restricted document, consisting of a summary of information contained in
observations received from non-governmental organizations and of comments
by Governments concerned. A member moved that the Annex should be
destroyed and the Sub-Commission decided by 8 votes to 6, with 4 absten-
tions to withdraw it.(jY The subsequent re-scheduling of the sessions of the
Sub-&ommission was then used to relieve it of further responsibility for
reviewing the reports (Council res. 123O(XLII)(1967)).
In resolution 1074 C the Commission was also requested to establish an ad
hoc committee having as its mandate the study and evaluation of the periodic
reports and other information received under the terms of the resolution and
to submit to the Commission comments, conclusions and recommendations of
an objective character.
At the subsequent sessions of the Commission the ad hoc committee played
a most important role. It usually prepared the drafts of the resolutions evaluat-
ing the reports and these were regularly adopted by the Commission. How-
ever, such evaluations have always been general in character. The ad hoc
committee and the Commission have never dealt with concrete situations and
specific problems, the measures taken to deal with them and the results
obtained. However, the Commission has made some attempts to make the
procedure more meaningful. Thus, for example, in 1973, (res. 24 (XXIX)) it
requested Governments to indicate the limitations that they have imposed on
the exercise of civil and political rights and freedoms and, in cases of emer-
gency measures, to specify the extent to which individual freedoms can still
be enjoyed, the constitutional and other safeguards which remain valid, and
the legal process by which civil and political rights and freedoms will be fully
restored. In the same resolution, the Commission urged Governments to
place greater emphasis on difficulties encountered, for example, difficulties
confronting a federal government in obtaining agreement to new legislation
from federal units; difficulties arising from particular situations such as the
presence within a country of ethnic, racial or religious minorities; difficulties
brought about by an insurrection or threat to national security; technical
legal difficulties; and difficulties encountered in the implementation or accep-
tance by the people of laws which have been recently enacted. In the same
resolution and in another in 1974 (res. 12 (XXX)) the Commission, in evaluat-
ing the reports, drew attention to a series of favourable developments but
also noted a number of areas in which problems had arisen.
In 1971 a proposal was made in the Commission to extend the reporting
cycle to nine years (E/4949 paras. 291-95). Later that year ECOSOC intro-
duced a six-year cycle (res. 1596 (L) (1971)). The consequences of this deci-
sion are that an event occurring in 1981 might conceivably not be reported
upon until 1987 or even later. In practice, the system appears to have achieved
very little, in part because the ad hoc committee has never sought to achieve
a dialogue with Governments. Moreover, although the Committee met in

1977 (E/CN.4/1226) and in 1979 (E/CN.4/1304), the Commission has postponed
consideration of the periodic reports at every session since 1978.70
The possibility exists for non-governmental organizations to participate in
the reporting procedure through the submission of comments and observa-
tions of an objective character on the human rights situation designed to
assist the Commission in its consideration of the reports (Council res. 888 B
(XXXIV) (1962) and 1074 C (XxX1X) (1965). In the latter resolution, the
Secretary-General was requested to forward for comments to the State con-
cerned any relevant material received from NGOs. The importance of NGOs
reports was again noted in Council resolution 1596 (L) of 1971. Nevertheless
very limited use would appear to have been made of this mechanism.
(c). United Nations studies in the field of human rights
(i) GENERAL
The UN Charter expressly provides for studies to be undertaken in human

rights matters [articles 13 (1) (b) and 62 (1) and (S)]. Studies may be under-
taken in order to obtain detailed information before taking action, to educate
world opinion or, as stated by the Commission on Human Rights in 1956
when it initiated a programme of study of specific rights, to ascertain the
existing conditions and the difficulties encountered in the work for the wider
observance of human rights. In a number of cases studies have been specific-
ally undertaken with a view to elaborating an international instrument such
as a Declaration or Convention.
In general terms, studies have been prepared by: (1) specially appointed
groups, as when a Committee of Experts serving in their personal capacities
prepared a report on slavery (E/1988): (2) Special Rapporteurs of the Com-
mission: (3) Special Rapporteurs of the Sub-Commission;71 (4) the specialized
agencies at the request of ECOSOC; and (5) the Secretary-General. In the
latter case, the study is prepared within the Secretariat and issued, as re-
quested by the organ concerned, as a report of the Secretary-General. In the
case of studies by Special Rapporteurs the degree and nature of the assis-
tance provided by the Secretariat in the preparation of the study vary con-
siderably from one to another. In all cases, however, responsibility for the
approach and contents of the report remains with the Special Rapporteur.
The sources of information used in the preparation of studies generally
include: (1) Governments; (2) the Secretary-General (i.e. published UN doc-
uments and unpublished UN information); (3) the specialized agencies; (4)
non-governmental organizations; and (5) writings of recognized scholars and
scientists.7
Before taking note of some of the main studies which are currently being
prepared, it is useful to trace the development of one particular study in
order to obtain some indication of the approach adopted in the preparation of
a major study. It illustrates the thoroughness of the process, the extent to

which the commissioning body and Governments are consulted, and the de-
lays which are often involved. Other reports may be prepared far more
rapidly and with a minimum of prior consultation.
Subject to the approval of the Economic and Social Council the Commission
selected, as its first subject for study, the right of everyone to be free from
arbitrary arrest, detention and exile. The Economic and Social Council ap-
proved this selection by resolution 624 B (XXII), section II, of 1 August 1956.
The Commission appointed a committee of 4 of its own members to prepare
the study. It submitted a preliminary report to the Commissions thirteenth
session (1957) and progress reports to the 14th to 16th sessions (1958, 1959,
1960). It presented a substantive report to the 19th session (1961), when the
Commission decided to transmit it to Governments for comments and asked
the four-member committee to revise it in the light of comments and also to
include in its revised report draft principles on the right of everyone to be
free from arbitrary arrest, detention and exile.73 The revised report was
submitted in 1962. It was published in printed form in 1964.74 In preparing
the report the Committee prepared a monograph on each country. It for-
warded the drafts of the country monographs to the Governments concerned
for checking, verification and comment and revised them in the light of the
observations received. Where no observations were received this was indi-
cated. Part I of the study deals with fundamental principles; part II with
arrest and detention of persons suspected or accused of a criminal offence;
part III with detention on grounds unconnected with criminal law, e.g. de-
tention of narcotic addicts and alcoholics; part IV with arrest and detention in
emergency and exceptional situations; and part V with exile. Part VI con-
tains the draft principles on freedom from arbitrary arrest.
The most immediate result of the study was a decision in 1961 by the
Commission to request the Committee to prepare a separate study of the
right of arrested persons to communicate with those whom it is necessary to
consult in order to assure their defence or to protect their essential interests.
The study was completed in 1969 (E/CN.4/996). Although the draft principles
attached to the first study were circulated to Governments for comments and
the subject placed on the agenda for most of the intervening years, it was not
until 1977 (Commission resolution 8 (XxX111)) that the Sub-Commission was
requested to prepare a Draft Body of Principles for the Protection of all
Persons under Any Form of Detention or Imprisonment. These were adopted
by it in 1978 and circulated to Governments for comments in 1979 (A/34/146).
(ii) sTunins Iiv PROGRESSATPRESENT
All of the major studies which had been completed as of January 1981 are
listed in the Bibliography of this book (see section 1 (B) (1)). At that time the
following studies of the Sub-Commission were in progress:
(1) Study of the problem of discrimination against indigenous populations, by

Mr. Jose R. Martinez Cobo (Ecuador), ECOSOC resolution 1589 (L) (1971).
(2) Study on the implication for human rights of states of siege and emer-
gency, by Mrs. Nicole Questiaux (France), Sub-Commission resolution 10
(XXX) (1977) and 5 D (1978) and ECOSOC resolution 1979/34.
(3) Extension and updating of the Report on Slavery (UN Sales No. 67.XIV.2),
by Mr. Benjamin Whitaker (UK), ECOSOC decision 1980/123.
(4) Study of the independence and impartiality of judiciary, jurors and asses-
sors and the independence of lawyers to the end that there shall be no
discrimination in the administration of justice and that human rights and
fundamental freedoms may be maintained and safeguarded, by Mr. L.M.
Singhvi (India), ECOSOC decision 1980/24.
(5) Study of the exploitation of child labour, taking into account all the eco-
nomic, social, cultural and psychological dimensions of the problem, by
Mr. Abdelwahab Bouhdiba (Tunisia), ECOSOC decision 1980/125.
(6) Study of the new international economic order and the promotion of
human rights, by Mr. Raul Ferrer0 (Peru), ECOSOC decision 1980/126.
(7) Study of the discriminatory treatment of members of racial, ethnic, reli-
gious or linguistic groups at the various levels in the administration of
criminal justice proceedings, such as police, military, administrative and
judicial investigations, arrest, detention, trial and execution of senten-
ces, including the ideologies or beliefs which contribute or lead to racism,
by Mr. Abu Sayeed Chowdhmy (Bangladesh), ECOSOC resolution 1980128.
(8) Study of relevant guidelines on the uses of electronics which may affect
the rights of the person and the limits which should be placed on such
uses in a democratic society, by a member of the Sub-Commission to be
designated by the Sub-Commissions chairman, Sub-Commission resolu-
tion 12 (XxX111) (1980)).
Note should also be taken of the following proposed studies:

(1) The Sub-Commission has requested the Secretary-General to undertake,
together with the ILO, an in-depth world-wide study of debt bondage, taking
into account all the relevant economic, social and legal aspects and the inter-
connections with other slavery-like practices (resolution 6 B (XxX1) (1978)).
(2) In 1980 ECOSOC authorized the Sub-Commission to designate a special
rapporteur from among its members to carry out a study on political, eco-
nomic, cultural and other factors underlying situations leading to racism,
including a survey of the increase or decline of all forms of racism and racial
discrimination (res. 1980/28). The question was considered by the Sub-
Commission in 1981.
(3) The Commission has requested the Sub-Commission to prepare a study
on ways and means of ensuring the implementation of the United Nations
resolutions on apartheid, racism and racial discrimination and submit it to the
Commission in 1982 (Commission res. 14 D (XXXVI)).
The above list of studies presently in the Sub-Commissions pipeline indi-

cates that there has been a proliferation of requests for studies and that the
subjects considered range over a broad spectrum of human rights concern. It
is of interest to note that the Director of the UN Division of Human Rights,
in his opening address to the 1980 session of the Sub-Commission, queried
whether the Sub-Commission is deriving full benefits from the multiplicity
of studies which it has undertaken. He emphasized the need to seek ways
and means of drawing the attention of the international community to stud-
ies, to consider appropriate follow-up action and to make cross-sectoral anal-
ysis of the findings of studies?
(iii) STUDIESOFTHE COMMISSI~NONTHE STATUSOF WOMEN
Since its establishment the Commission on the Status of Women has been
engaged in the collection of information of a legal, economic and social charac-
ter as a basis for its recommendations and for the preparation and drafting of
international instruments. In the present context it is not proposed to under-
take a comprehensive review of all the studies prepared for the Commission.
Rather, note will be taken of some of the more significant studies prepared in
recent years, with particular emphasis on those which were presented to the
World Conference of the United Nations Decade for Women: Equality, De-
velopment and Peace held in 1980. While some of these studies emanated
from the Commission on the Status of Women, others did not.
- Study of the interrelationship of the status of women and family planning,
by Mrs. H. Sipila (EICN.61575 and Add.l-3 (1974)):
- Report on the status of the unmarried mother: law and practice (E/CN.6/540
(1970)):
- Review and evaluation of progress made and obstacles encountered at the
national level in attaining the objectives of the World Plan of Action
(AXONF.94130); cf. also (A/CONF.94/8-13);
- Women in rural areas (A/CONF.94/28);
- Technological change and women workers: the development of microelec-
tronics (AiCONF.94126);
- Information and communication as a development resource for the ad-
vancement of women (AICONF.94127);
- The effects of science and technology on the employment of women
(A/CONF.94/29);
- Report of a seminar on women and the media (AXONF.94IBP. 10);
- Report of the Special Rapporteur on the influence of the mass communi-
cations media on attitudes towards the roles of women and men in present-
day society (EICN.61627 (1980));
- Seminar on traditional practices affecting the health of women and chil-
dren (A/CONF.94/BP.9);
- Status and role of women in education and in the economic and social
fields (A341577 and Add. 1);
- Review and evaluation of global and regional programmes of the United

Nations system, 1975-1980 (AiCONF.94131);
- Effective mobilization of women in development (A/35/82).
(d). Advisory services in human rights

The programme of advisory services in human rights was the third compo-
nent of the programme of practical action initiated by the Commission on
Human Rights in 1953. In that year the General Assembly authorized the
Secretary-General to provide advisory services in promoting and safeguard-
ing the rights of women (res. 729 (VIII)) and in the eradication of discrimina-
tion and the protection of minorities (res. 730 (VIII)). In 1954, the promotion
of freedom of information was added to this list (res. 839 (IX)). In response to
a resolution by the Commission on Human Rights Technical Assistance
(res. VII (XI) (1955)) and a recommendation by ECOSOC (res. 586 E (XX)
(1955), the General Assembly decided in 1955 (res. 926 (X)) to consolidate
these existing programmes, along with the measures proposed by the Com-
mission, into a programme of advisory services in the field of human rights.
The latter term was adopted on the grounds that use of the term technical
assistance might have deterred Governments from making use of the pro-
gramme. Governments were unlikely to seek outside assistance in a matter
like human rights because to do so might be interpreted as an admission of
weakness. The term advisory services, on the other hand, would suggest to
Governments that when they invited a seminar to be held on their territory
this was a sign of strength rather than of weakness, an invitation to learn
from their successes in regard to the problem to which the seminar was to be
devoted.
Under the advisory services programme the Secretary-General is author-
ized, subject to the directions of ECOSOC, to make provision, at the request
of Governments, for the following forms of assistance: (a) advisory services of
experts; (b) fellowships and scholarships; (c) seminars.
(i) HUMAN RIGHTS SEMINARS
The seminars provided for in the programme of advisory services in human

rights are by far the most important part of it. The participants, who are
nominated by Governments and confirmed by the Secretary-General, attend
in their personal capacity. It is required that they are well-qualified in their
respective fields. They have included cabinet ministers, attorneys-general,
solicitors-general, judges of high courts, senior government officials, news-
papers publishers, editors and writers, and many others. There would seem,
however, to have been an increase in recent years in the proportion of parti-
cipants holding diplomatic or other government posts and a concomitant
reduction in the number of independent expert participants. The seminar
discussions are documented by background papers prepared by expert con-
sultants and documentation prepared by the Secretariat. Each participant is
expected to submit a paper outlining the relevant situation and developments

in his own country, so that the seminar can proceed to discuss and compare
experiences. The seminar reports, which appear in the series STTAOIHRI-,
and beginning in 1978 in the series ST/HR/SER.A/-, summarize the discus-
sions and any conclusions which may have been reached by consensus. In
general, it can be said that the seminars are, in fact, international or
regional conferences of persons nominated by their Governments, though not
formally representing them. As of January 1982,60 such seminars have been
held; some of them have been regional seminars, others interregional or
international seminars. Seminars have been held in all parts of the world;
none have been held at UN Headquarters in New York.
(ii) SERVICESOF EXPERTS
Only a few Governments have availed themselves of the expert services

provided for under the programme. Two Governments received advice con-
cerning elections, electoral laws, procedures and techniques. Others asked
for assistance in questions relating to the status of women. In 1980 the
Secretary-General informed the Commission that a further inquiry had re-
cently been received from an unspecified Government concerning the avail-
ability of expert services.
Although apparently not envisaged as a part of the advisory services pro-
gramme, it is relevant to note in the present context that at its 1980 session
the Sub-Commission (Resolution 3 (XxX111)) recommended to the Commis-
sion on Human Rights that it make recommendations to the Economic and
Social Council: (i) to consider the proposal for setting up a Human Rights
Assistance Fund to help countries to achieve at least minimum standards of
human rights laid down in the international instruments on human rights in a
practical and purposeful manner on an urgent basis (ii) to assist in the introduc-
tion of human rights education and, if practicable, of Human Rights Centres
in all schools, colleges and universities in all the countries of the world; and
(iii) to request all Member States of the United Nations to translate impor-
tant United Nations Conventions, Declarations and Principles relating to
Human Rights in their respective languages spoken and used by minorities
and other ethnic, cultural and linguistic groups in so far as it may be practica-
ble. Such a fund would, if established, be a major breakthrough in the context
of positive, practical measures taken by the United Nations for the promo-
tion of human rights.
(iii) rELLowsnms
Under the terms of General Assembly resolution 926 (X), human rights fel-
lowships are available to qualified candidates nominated by Member States
who are planning to study any subject in the field of human rights which is of
concern to the United Nations (as defined in relevant United Nations Cove-
nants, Declarations and Resolutions) provided that the subject is not one that
falls within the scope of other existing technical assistance programmes or

one for which adequate advisory assistance is available through a specialized
agency. In the selection of candidates, preference is given to persons having
direct responsibilities in the field of the implementation of human rights in
their respective countries.
The number of fellowships granted each year depends on the financial
resources available, which, in most years, have not been great. The number
was 21 in 1962 but reached a high of 63 in the 1960s. By 1979, the number had
fallen to 25. Of these, recipients included government officials with responsi-
bility for the administration of justice and for drafting legislation as well as
officials of ministries of justice, education, foreign affairs and interior and of
the police departments (E/CN.4/1377 (1980)).
Mention should also be made of pilot projects in which fellowships have
been used for groups rather than individual training. Some regional training
courses have also been held and another is planned for 1981 (ECOSOC reso-
lution 1978114).
(e). Public information activities

Action taken by the Commission in recent years has reflected a growing
awareness of the central role of grass-roots efforts to promote and protect
human rights. Thus in addition to emphasizing the importance of establishing
national and local human rights institutions, 76the Commission has sought to
foster greater knowledge and awareness by the peoples of the world of their
human rights. Thus in 1979 and 1980 it urged all Governments to consider
action to facilitate publicity regarding United Nations human rights activities
and it requested the Secretary-General, in co-operation with Unesco and
ILO, to draw up and implement a world-wide programme for the dissemina-
tion of international human rights instruments in as many languages as possible.77
(f). The struggle against racial discrimination and apartheid

The preceding survey of the activities of United Nations organs has shown
that very many of them have been engaged and continue to be engaged in
action aimed at the elimination of racial discrimination and apartheid. We
have seen that the General Assembly, in plenary meetings and in its relevant
Main Committees, has for many years devoted a large part of its work,
energy and time to this task. One of its permanent subsidiary organs, the
Special Committee against Apartheid, deals exclusively with this problem
and another, the Committee of Twenty-five, has constantly taken action on
racial discrimination in dependent territories. Energetic action in this field
by the Security Council in regard to South Africa, Namibia and the former
Portuguese-dominated Territories in Africa has been taken. Prior to its inde-
pendence in 1980, the question of Zimbabwe (Southern Rhodesia) had been
on the agenda of the Security Council since 1975 and action under Chapter
VII of the Charter was taken. The Economic and Social Council and the
Commission on Human Rights have been active on the anti-apartheid front
for many years. The Sub-Commission on Prevention of Discrimination and
Protection of Minorities is by definition an organ called upon to aim at the
elimination of apartheid and racial discrimination. Also other functional com-
missions, the Commission on the Status of Women and the Commission for
Social Development, have partaken of this work within their respective fields.
While the task of the Trusteeship Council is almost completed because most
of the Trust Territories are now independent or parts of independent States,
it remains interested in action against racial discrimination.
The present section will be restricted to describing briefly some of the
specific arrangements which have been made by some of these organs in this
field. Such a review is particularly useful in that it provides an overview of
the type of activities undertaken by the UN in response to a particularly
pressing problem. Moreover, many of the techniques which have been thus
developed have subsequently been applied in other situations of human rights
violations not involving racial discrimination. Thus in some respects the strug-
gle against racial discrimination and apartheid has acted as a testing ground
on which to experiment with measures designed both to promote and protect
human rights and which might later be adapted for use in other situations.
The review focuses both on bodies which have been established and on the
techniques which have been applied. It does not, however, go over the ground
covered earlier relating to the drafting and adoption of international instru-
ments, which has also been a technique of major importance. Some indication
of the scope, number and variety of resolutions adopted by organs of the UN
may be gained from the list of resolutions adopted by the General Assembly
in 1979 relating to the policies of apartheid which is contained in the following
section dealing with the Special Committee against Apartheid.
(i) THE SPECIAL COMMITTEE AGAINST APARTHEID
The background to the establishment of the Special Committee in 1962 has

been described earlier. Its mandate has been expanded and elaborated upon
by later decisions of the General Assembly, most of which were adopted on
the recommendation of the Committee. Thus the Special Committee has been
authorized to receive and consider petitions; to consult specialized agencies,
regional organizations, States and non-governmental organizations; to take
additional steps to promote assistance to the national movement of the oppressed
people of South Africa against the policies of apartheid, in consultation with
the Organization of African Unity; constantly to review all aspects of the
policies of apartheid, including legislative, administrative and other racially
discriminatory measures and efforts of South Africa to extend its inhuman
policies of apartheid beyond the borders of South Africa; to promote maxi-
mum participation by trade unions at the national and international level in
action against apartheid in South Africa; to undertake studies concerning the
economic and other interests impeding decolonization and the eradication of

apartheid in southern Africa; to organize seminars, etc. from Headquarters,
including a special session in various European capitals in 1974, and to orga-
nize a seminar to consider the present situation in South Africa and the
means for promoting public action against apartheid.78
The substance of the work done by the Special Committee on Apartheid is
best described in its annual reports to the General Assembly (A/35/22 (1980)).
In the present context it is sufficient to say that the General Assembly has
condemned the policies of apartheid as a crime against humanity and as a
crime against the conscience and dignity of mankind; and that it has recom-
mended various forms of sanctions against South Africa and repeatedly ap-
pealed to the Security Council to apply Chapter VII of the Charter against
South Africa.
Thus for example in 1979 the General Assembly adopted resolutions 34/93
A-R dealing with: A. Situation in South Africa; B. United Nations Trust
Fund for South Africa; C. International Conference on Sanctions against
South Africa; D. Arms embargo against South Africa; E. Nuclear collabora-
tion with South Africa; F. Oil embargo against South Africa; G. Bantustans;
H. Political prisoners in South Africa; I. Assistance to the oppressed people
of South Africa and their national liberation movement; J. Dissemination of
information on apartheid; K. Women and children under apartheid; L. Role
of the mass media in international action against apartheid; M. Role of non-
governmental organizations in international action against apartheid; N. Apart-
heid in sports; 0. Declaration on South Africa; P. Relations between Israel
and South Africa; Q. Investments in South Africa; R. Programme of work of
the Special Committee against Apartheid.
(ii) THEADHOC~ORKI~GR~~POFEXPERTS
In 1967, the Commission on Human Rights considered a letter from the

Acting Chairman of the Special Committee on Apartheid stating that evi-
dence of the continuing ill-treatment of prisoners, detainees and persons in
police custody in South Africa was (still) being received, and expressing the
Special Committees hope that the Commission will take steps to secure an
international investigation with a view to ameliorating the conditions of the
victims. In response the Commission decided to establish, in accordance with
ECOSOC res. 9(11)(1946), an Ad Hoc Working Group of Experts composed of
eminent jurists and prison officials to investigate the charges of torture and
ill-treatment of prisoners, detainees or persons in police custody in South
Africa. 7gCouncil resolution 9 (II), on which the Commission based its action,
is the second of the two resolutions of 1946 establishing the Commission on
Human Rights and defining its functions. One of its provisions is to the effect
that the Commission is authorized to call in ad hoc working groups of non-
governmental experts in specialized fields or individual experts, without fur-
ther reference to the Council, but with the approval of the President of the
Council and the Secretary-General. The proposition that council resolution 9

(II) was a sound legal basis for the establishment of the Ad Hoc Working
Group of Experts was doubted by some, particularly as the non-governmental
experts appointed to constitute the group were members of the Commis-
sion, i.e. government representatives. The question became moot very soon
after the 1967 session of the Commission, when the Economic and Social
Council welcomed the decisions of the Commission set out in its resolution 2
(XXIII) and condemned the Government of South Africa for refusing to
co-operate with the United Nations in expediting the work of the Ad Hoc
Working Group (Council resolution 1236 (XLII) of 6 June 1967). The Council
also referred to the Ad Hoc Working Group allegations of the infringement of
trade union rights in South Africa made by the World Federation of Trade
Unions and transmitted to the United Nations by the International Labour
Office, because South Africa had ceased to be a Member of the ILO. (Council
res. 1216 (XLII)(1967). The Ad Hoc Working Group was requested to report
to the Council on its findings on the trade union rights complaint.
Since then the Ad Hoc Working Group has been very active in both lines of
its work, and has submitted comprehensive reports on its findings which
have led to action by the higher bodies, including the General Assembly. In
1968, the Commission (res.2 (XXIV)) enlarged the mandate of the group to
cover South West Africa, Southern Rhodesia, Mozambique, Angola and other
Portuguese territories in Africa. Resolution 5 (XXIV) of the Commission led
to the adoption of General Assembly resolution 2440 (Xx111)(1968) which
condemned the practice of torture, inhuman and degrading treatment of
detainees and prisoners and called upon the Government of South Africa to
take certain defined steps to remedy the situation. In 1969, the mandate of
the Working Group was further enlarged. It was requested, inter alia, to
make an inquiry into the question of capital punishment in southern Africa
(Commission res. 21 (XXV)). In 1969, on the basis of the groups report, the
General Assembly (res. 2547 A (XXIV)) requested the Secretary-General to
establish, maintain and publicize an up-to-date register of persons subjected
to imprisonment, detention, banishment and other restrictions, and of per-
sons who have been victims of brutality for their opposition to apartheid and
racial discrimination.
In 1972, the Working Group submitted a study to the Commission on the
question of apartheid from the point of view of international penal law
(E/CN.4/1075). Since that time the Working Group has submitted a variety of
reports to the Commission on different aspects of the situation in southern
Africa. Thus in 1980 the Commission considered a special report of the Group
on certain cases of torture and murder of detainees in South Africa (E/CN.4/1366)
and a progress report on a study on the action taken to implement the
recommendation made by the Working Group since its establishment
(E/CN.4/1365). In accordance with a resolution of the General Assembly (34/24
of 1979) one of the Groups activities in 1980 was the preparation of a study on
ways and means of implementing international instruments such as the In-

ternational Convention on the Suppression and Punishment of the Crime of
Apartheid. Its other activities in 1980 included: the continuation of its inquir-
ies relating to persons suspected of having been guilty in Namibia of the
crime of apartheid or of a serious violation of human rights; and the continua-
tion of its study of the policies and practices which violate human rights in
southern Africa (Commission res. 9 (XXXVI) (1980)). In the latter connec-
tion the Group was requested to bring immediately to the attention of the
Commissions Chairman any particularly serious violations of which it learns
during its study, so that he may take whatever action he deems appropri-
ate.@ It is also of interest to note, in relation to the methods used by the UN
to fight against apartheid, that in 1980 the Commission requested the Secretary-
General to prepare a one-page summary of the findings of the Group and to
publish it in the worlds leading newspapers, together with the Commissions
condemnation of the violations of human rights in South Africa (res. 9 (XXXVI)).
(iii) srEciAi. RAPPORTEURS
Both the Commission and the Sub-Commission have made use of the tech-
nique of appointing Special Rapporteurs to study particular issues relating to
the struggle against racial discrimination and apartheid. Thus in 1967 the
Commission appointed Mr. M. Ganji (Iran) to survey past UN action in its
efforts to eliminate the policies and practices of apartheid, to study the
relevant legislation and practice and to report and make recommendations on
measures which might be taken by the General Assembly (res. 7 (XXIII)). In
1968, the Assembly (res. 2439 (XXIII)) endorsed the Special Rapporteurs
recommendations (contained in E/CN.4/949 and Add.) that the Government
of South Africa, in order to conform with its obligations under the UN Char-
ter should undertake to repeal, amend and replace certain specified discrimi-
natory laws. Recommendations contained in the Special Rapporteurs second
report (EICN.41979 and Add. (1969)) were also endorsed by the Assembly
(res. 2547 B (XXIV) (1969)). The mandate of the Special Rapporteur was
terminated by the Commission in 1970.
In 1974 the Sub-Commission (res. 2 (XXVII)) with the prior authorization
of ECOSOC (res. 1864 (LVI)) appointed Mr. A. Khalifa (Egypt) as Special
Rapporteur to study the adverse consequences for the enjoyment of human
rights of political, military, economic and other forms of assistance given to
colonial and racist regimes in southern Africa. The resulting reports1 thor-
oughly documents the extent of foreign trade and assistance with the coun-
tries concerned and notes the network of repression by which the policy of
apartheid is enforced. The report notes that far from exerting leverage for
changed policies, foreign funds are building up South Africas economy so
that it will be better able to resist any challenges to apartheid from the
international community and concludes that a mandatory arms embargo, a
complete withdrawal of economic interests and the severing of economic
relationships are the minimum pressures required to bring about drastic

change.
Other studies by Special Rapporteurs currently in progress, and which
have been listed above, are also relevant in the present context.
(iv) THE GROUP OF THREE
The International Convention on the Suppression and Punishment of the

Crime of Apartheid provides for the appointment by the Chairman of the
Commission on Human Rights of a group of three members of the Commis-
sion, who are also representatives of States Parties to the Convention, to
consider the reports of states under the Convention. The work of this group
is analyzed in Chapter 11.
(V) SPECIAL YEARS AND THE DECADE FOR ACTION TO COMBAT RACISM
AND RACIAL DISCRIMINATION
At the suggestion of the International Conference on Human Rights in 1968s

the General Assembly (res. 2544 (XXIV) (1969)) designated 1971 as Interna-
tional Year for Action to Combat Racism and Racial Discrimination.8 In
1972, (res. 2919 (XXVII)) the Assembly launched a Decade under the same
title to begin in 1973, on the 25th anniversary of the Universal Declaration of
Human Rights. The goals of the programme for the Decade (contained in GA
res. 3057 (XXVIII) (1973)) are: to promote human rights and fundamental
freedoms for all; to arrest any expansion of racist policies, to counteract the
emergence of alliances based on mutual espousal of racism and racial discrim-
ination; to resist any policy and practices which lead to the strengthening of
the racist regimes and contribute to the sustainment of racism and racial
discrimination; to identify, isolate and dispel the fallacious and mythical be-
liefs, policies and practices that contribute to racism and racial discrimination
and to put an end to racist regimes.
The Programme adopted in 1973 also recommended a range of measures to
be taken at both the national and international levels and provided for the
holding, in 1978, of a World Conference to Combat Racism and Racial Discrimi-
nation. In addition to a Declaration and Programme of Action the Conference
also adopted a number of resolutions.x4 The Declaration states that any
doctrine of racial superiority is scientifically false, morally condemnable, so-
cially unjust and dangerous, and has no justification whatsoever and de-
clares that the elimination of racial discrimination is an imperative norm of
the international community. The Declaration deals not only with southern
Africa but also with: the question of Palestine; the role of national, ethnic and
other minorities; the rights of indigenous peoples, immigrants and migrant
workers; and the special problems for women and children which flow from
discriminatory practices. In the Programme of Action the Conference dealt
with measures to be taken at the national, regional and international levels
and measures for support to victims of racism, racial discrimination and
. _- .,
apartheid. At the national level the Conference calIed upon all Governments
to ensure that legislative, judicial, administrative and other measures are
adopted to prohibit in their respective countries any manifestations of racism
and racial discrimination, regardless of whether or not discriminatory prac-
tices prevail. The Declaration and the Programme of Action were subse-
quently approved by the General Assembly (res. 33/99 (1978)).
In 1979, the Assembly adopted a four year programme of activities for the
latter part of the Decade (res. 34/24 ). These activities include, for example,
the holding of a seminar in 1981 to study the formulation of effective mea-
sures to prevent transnational corporations and other established interests
from collaborating with the racist regimes in southern Africa, and the prepa-
ration by the Sub-Commission of a study on ways and means of ensuring the
implementation of the UN resolutions on apartheid, racism and racial dis-
crimination (see Commission res. 14 (XXXVI)). It has been suggested that a
second world conference be held in 1983.
It should also be noted that in 1977 the General Assembly proclaimed the
year beginning on March 21, 1978 to be International Anti-Apartheid Year
and endorsed a programme of activities for the year (res. 32/105 B).
(Vi) PREPARATION OF LISTS OF ENTITIES
As a follow-up to the Khalifa study referred to above, the Sub-Commission

invited the Special Rapporteur to prepare the necessary material for a provi-
sional general list identifying those individuals, institutions including banks
and other organizations or groups, as well as representatives of States, whose
activities constituted political, military, economic or other forms of assistance
to the colonial and racist regimes in southern Africa (Commission res. 7
(XxX111) and Sub-Commission res. 1 (XXX) (1977)). The revised list was
submitted to the General Assembly in 1980 and the Special Rapporteur was
requested to continue to update the list each year.x5
(Vii) SEMINARS
As noted above, and in the bibliography, a number of seminars has been held
on subjects relating to racism, racial discrimination and apartheid. These
include: a symposium on the exploitation of Blacks in South Africa and Namibia
and on prison conditions in South African jails; a European regional seminar
on recourse procedures available to victims of racial discrimination; a round-
table on the teaching of problems of racial discrimination; and a seminar on
political, economic, cultural and other factors underlying situations leading to
racism. In addition to these seminars, which were organized by the UN
Division of Human Rights, a variety of other meetings have taken place
within the UN system on issues such as women under apartheid* and South
Africa after apartheid: dismantling the structure and heritage of racism.s7
(viii) STUDIES
Many of the studies undertaken in this area have been referred to earlier in
this chapter. In the present context only two will be noted. The proposal to
undertake the first of these has not yet been endorsed by the General As-
sembly. It involved a recommendation by ECOSOC that the Assembly should
arrange for a study to be made of the South African Governments legiti-
macy, in view of its policy of apartheid and in particular its systematic refusal
to apply the principles of the Charter of the United Nations, of international
law and of the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, and then to draw from that study all appro-
priate conclusions of law and of fact (ECOSOC decision 1979133).Such a study
would be a path-breaking exercise with considerable potential significance
for the international law of human rights.
The second study which may be noted is one prepared by the Secretary-
General on apartheid and colonialism as collective forms of slavery
(EICN.4Sub.21449 (1980)). The study concludes, on the basis of relevant in-
ternational instruments and decisions, that the international community has
recognized that the apartheid system in South Africa is not simply a racial
discrimination problem to be solved through education and political and social
reforms. Rather, it has been increasingly understood that the essence of
apartheid lies in the dispossession of the black population through the imposi-
tion of quasi-colonial rule, and in the harnessing of the labour of the van-
quished indigenous people through a variety of coercive measures for the
profit of white investors, both South African and foreign. The international
community has therefore described the apartheid system as a slavery-like
practice imposed on an entire collectivity, which can be eradicated only through
a complete restructuring of the existing political and economic relationships.
(ix) s~mx4L FUNDS
In addition to the funds provided by the specialized agencies such as Unesco,

ILO, WHO and FA0 and by UN organs such as UNICEF and UNDP, the
UN has established two trust funds to provide relief and assistance to victims
of apartheid and racial discrimination in southern Africa: the UN Trust Fund
for South Africa (A/34/661) and the UN Trust Fund for Namibia (A/35/24).
(9). United Nations practice in fact-finding in human rights matters

The term fact-finding is a technical one used to describe efforts undertaken
to ascertain the situation of human rights either in regard to a particular
country (as in the reports on South Africa discussed above) or in regard to a
particular problem (as in the case of disappeared persons). The objective of
the process is not primarily to document the extent and nature of human
rights violations which have occurred but to encourage and facilitate the
restoration of respect for human rights. While the number of United Nations
fact-finding exercises has grown considerably in recent years it must be
emphasized that the practice adopted in each case is generally carefully tai-
lored to the particular circumstances. As a result only a limited number of
useful generalizations can be made as to the practice which has been adopted.%
In addition to fact-finding exercises which have been conducted within the
framework of the confidential 1503 procedures described above (most of the
details of which are not publicly known), United Nations fact-finding mis-
sions have visited South Vietnam, in 1973 (A/5630); Quinetra in 1976 and
1977; Chile in 1978 (A/ 33/331); Equatorial Guinea in 1979 and 1980 (E/CN.4/1371)
and the Islamic Republic of Iran (1980). Other exercises which have been
undertaken have concerned the occupied territories in the Middle East,sg
Chile,go Democratic Kampuchea,g1 Guatemala,Y2 Nicaragua,Y Portuguese Mo-
zambique, South Africa and Bolivia,Y4 and the general question of missing or
disappeared persons. The practice of the various United Nations organs
indicates that a fact-finding exercise may be initiated with respect to any
situation involving a consistent pattern of gross violations of human rights.
This formula which uses the wording of ECOSOC resolution 1503 (XLVIII) is
not susceptible to precise definition and in practice has been interpreted
increasingly liberally.
As well as gathering information over a period of time United Nations
fact-finding bodies have in different cases been empowered to take urgent
measures for the protection of victims. These include: the use of the good
offices role of the Secretary-General or the Chairman of the Commission on
Human Rights (for example, Commission resolution 9 (XXXVI) (1980)); the
making of direct representations to the Government concerned; the estab-
lishment of direct contacts by the Secretary-General (e.g. Commission reso-
lution 30 (XXXVI) (1980)); the despatch of telegrams to relevant Governments
(Commission decision 12 (XXXV) (1979)). A fact-finding body may also re-
ceive a broader mandate, as in the case of the Working Group on missing and
disappeared persons established by the Commission in 1980 (resolution 20
(XXXVI)) which was invited in establishing its working methods, to bear in
mind the need to be able to respond effectively to information that comes
before it and to carry out its work with discretion. Accordingly, during 1980
the Group took action in response to urgent reports of enforced or involun-
tary disappearances in cases where immediate action was warranted to save
lives.g5
At its 1980 session, the Sub-Commission adopted several important resolu-
tions relating to fact-finding. The most significant of them would, if approved
by the Commission, enable the Sub-Commissions Chairman, in consultation
with its Vice-Chairmen and Rapporteur and the Secretary-General, and with
the consent of the governmental authorities concerned, to arrange for one or
more Sub-Commission members to visit, with a view to examining first-
hand, and reporting to the Sub-Commission at its thirty-fourth (1981) ses-
sion, upon the human rights problems in any countries which were the subject
of discussions at the Sub-Commissions thirty-third session, together with
any other human rights problems of comparable magnitude which may come
to the attention of such member or members during their examination (reso-
lution 22 (XxX111)). In another resolution the Sub-Commission recognized
the need to have at its disposal adequate information reflecting the situation
in different countries and systems and recommends the creation of an infor-
mation gathering service within the United Nations Division of Human Rights
(resolution 19 (XxX111) (1980)). At present no such general service is avail-
able anywhere within the United Nations system.
In general terms then it can be seen that as the use of fact-finding proce-
dures has expanded in recent years so too has the diversity of approaches
adopted by United Nations organs. Proposals to create an intersessional role
for the Bureau of the Commission would, if adopted, add significantly to the
flexibility, timeliness and perhaps effectiveness of procedures in this area.j
Conclusion
The foregoing survey has focused primarily on the organs established and
the procedures adopted by the United Nations in the field of human rights.
Policy approaches have not been directly surveyed, although they are in fact
the prime determinants of both procedures and practice. Nevertheless, it
would be remiss to neglect to note the fundamental change in direction which
is discernible in United Nations human rights policies at least since 1977. In
adopting a structural approach to human rights issues, the United Nations
has attached much greater weight than before to the various forms of struc-
tural interdependence which determine the extent to which human rights are
respected and enjoyed. Thus, for example: (1) the relationship between in-
ternal and external factors has been acknowledged in the context of the link
between the establishment of a new international economic order and the
promotion of human rights; (2) the interdependence of efforts to achieve
development, peace and respect for human rights has been emphasized; (3)
the importance of social, cultural and, in particular, economic factors underly-
ing large scale violations of human rights has been analyzed not only in
general terms but also in relation to specific situations; (4) recognition of the
dynamism of the human rights tradition has been achieved through explora-
tion of concepts such as the right to development and the right to peace and
(5) the fundamental importance of regional, national and local self-reliance in
terms of the struggle to win respect for human rights has been recognized
through a renewed emphasis on the need to establish human rights mecha-
nisms at all these levels.
The broad outline of this structural approach was traced by the General
Assembly in a landmark resolution in 1977 (resolution 321130). It is appropri-
ate to conclude this review by quoting paragraph 1 of that resolution by
which the Assembly decided that the approach to the future work within the
United Nations system with respect to human rights questions should take
into account the following concepts:
(a) All human rights and fundamental freedoms are indivisible and interdependent; equal
attention and urgent consideration should be given to the implementation, promotion and
protection of both civil and political, and economic, social and cultural rights;
(b) The full realization of civil and political rights without the enjoyment of economic,
social and cultural rights is impossible; the achievement of lasting progress in the imple-
mentation of human rights is dependent upon sound and effective national and international
policies of economic and social development, as recognized by the Proclamation of Teheran
of 1968;
(c) All human rights and fundamental freedoms of the human person and of peoples are
inalienable;
(d) Consequently, human rights questions should be examined globally, taking into ac-
count both the overall context of the various societies in which they present themselves, as
well as the need for the promotion of the full dignity of the human person and the develop-
ment and well-being of the society;
(e) In approaching human rights questions within the United Nations system, the inter-
national community should accord, or continue to accord, priority to the search for solutions
to the mass and flagrant violations of human rights of peoples and persons affected by
situations such as those resulting from apartheid, from all forms of racial discrimination,
from colonialism, from foreign domination and occupation, from aggression and threats
against national sovereignty, national unity and territorial integrity, as well as from the
refusal to recognize the fundamental rights of peoples to self-determination and of every
nation to the exercise of full sovereignty over its wealth and natural resources;
v) The realization of the new international economic order is an essential element for the
effective promotion of human rights and fundamental freedoms and should also be accorded
priority;
(s) It is of paramount importance for the promotion of human rights and fundamental
freedoms that Member States undertake specific obligations through accession to or ratifi-
cation of international instruments in this field; consequently, the standard-setting work
within the United Nations system in the field of human rights and the universal acceptance
and the implementation of the relevant international instruments should be encouraged;
(h) The experience and contribution of both developed and developing countries should
be taken into account by all organs of the United Nations system in their work related to
human rights and fundamental freedoms.
NOTES
1. The latest version is contained in Dot. A/520/Rev.13 (Sales No. E. 79. I. 11).
2. Verbatim record of the 409th plenary meeting, 20 December 1952; G.A. res. 640
(VII).
3. Verbatim record of the 647th plenary meeting, 29 January 1957;G.A. res. 1040 (XX).
4. Verbatim record of the 1193rd and 1194th plenary meetings, 14 December 1962; G.A.
res. 1803 (XVII).
5. See, e.g, the verbatim records of the 656th and 657th meetings, 20 February 1957.
6. See section 2 (f) infra.
7. See A/2505 (1953), A2719 (1954), and A12953(1955).
8. See the report of the Special Committee in A/6000/Rev. 1 (1965) para. 463. The
procedure adopted is considered below.
9. See A/6825. For analysis see Samuel Bleicher, UN v. IBRD: A Dilemma of Func-
tionalism, Zntemzational Organization, Vol. 24, 1970, pp. 31-47.
10. The most recent report is contained in A/35/23 (1980).
11. Reservations as to the petitions and communications procedures have been expressed
by certain members of the Special Committee. See A/5238, paras. 16111.
12. G.A. res. 319 (IV) of 1949, supplemented by res. 428 (V) of 1950to which the Statute
of the Office is annexed.
13. A/34/12, para. 2.
14. For details of the UN role in South East Asia see A/34/627 (1979) and for a report on
UNHCR assistance activities in 1979-1980see A/35/12 (1980).
15. See dot. E/5715 (Sales No. E. 75. 1.15).
16. See Robert McLaren, The UN System and its Quixotic Quest for Co-ordination,
ZnternationaZ Organization, Vol. 34, 1980, pp. 139-48.
17. As these matters are now dealt with by the Sub-Commission on Prevention of Discrimi-
nation and Protection of Minorities they are treated below in that context.
18. Report of the Preparatory Commission of the United Nations, Dot. PC/20, 23 De-
cember 1945, Chap. III, sec. 4, paras. 15-16.
19. See dot. E/5975 (Sales No. E. 77. I. 10).
20. Council res. 5 (I) of 16 February 1946 and (II) of 21 June 1946.
21. For an opinion prepared by the UN Office of Legal Affairs in 1962 on the status of
declaration in general, see Official Records of the Economic and Social Council, Thirty-
fourth Session, Supp. No. 8, para. 105.
22. G.A. res. 36/57.
23. G.A. res. 36/55.
24. See A. Grahl-Madsen, Zetitorial Asylum, Stockholm, 1980.
25. For an incisive and constructively critical analysis see Theo C. van Boven, The
United Nations and Human Rights: A Critical Appraisal, Bulletin of Peace Proposals
(Oslo), Vol. 8, 1977, pp. 198-208.
26. Jean-Bernard Marie, La Commission des droits de lhomme de lONU, Paris, Pedone,
1975.
27. See, for example, E/5464, Chap. XIX B (I); and Commission decisions 2 (XXXV) and
12 (XXXV) (1979).
28. This work is recorded in a number of UN reports, including E/2673 and Add.
(1955), E/2824 (1956), E/4168/Rev.l (UN Sales No. E.67.XIV.2 (1967)and E/CN.4/Sub.2/322
(1971).
29. The reports of the Group are contained in EICN.4Sub.iAC.213 (1975);EiCN.4iSub.21373
(1976); EICN.4iSub.21389 (1977); EiCN.4iSub.21410 (1978); EICN.4Sub.21434 (1979) and
EiCN.4Sub.21447 (1980).
30. The Conferences Final Act is contained in EICONF.6179 (1948).
31. The reports of the Sub-Commission are contained in: E/441 (1947); EiCN.4180 (1948);
E/1369 and Add. 1 (1949); E/1672 (1950); and E/2190 (1952). See also Eek, Freedom of
Information as a Project of International Legislation, Uppsala, 1953.
32. See generally United Nations Action in the Field ofHuman Rights, 1980, Chap. VI;
and Bruce, Work of the United Nations relating to the Status of Women,Revue des droits
de lhomme, Vol. IV, Nos. 1 & 2, 1971, pp. 365-412; and Galey, Promoting Nondiscrimina-
tion Against Women: The UN Commission on the Status of Women, Znternutional Studies
Quarterly, Vol. 23, 1979, pp. 273-302.
33. League of Nations, Treaty Series, Vol. 179, No. 4137.
34. See Schwelb, Marriage and Human Rights, American Journal of Comparative
Law, Vol. 12, 1963, p. 337.
35. See Report of the World Conference of the Znternational Womens Year, Mexico,
1975, UN Sales No. E.76.IV.l (EICONF.66134).
36. The conference generated a number of important reports which were issued as docu-
ments A/CONF.94/1-20 (1980). See also EiCN.61622 (1980) and A.35182 (1980). The report of
the conference is contained in AICONF.94135.
37. The relevant instruments are: (i) the Declaration on the Elimination of Discrimina-
tion against Women (ECOSOC res. 1325 (XLIV) (1968) and 1677 (LID (1972); (ii) the 1975
World Plan for Action (G.A. res. 3490 (XxX)(1975); and (iii)) the International Develop-
ment Strategy for the Second UN Development Decade (G.A. res. 2626 (XXV)(1970)).
38. Legal consequences for States of the continued presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council resolution 276 1970, Advisory Opin-
ion, Z.C.J. Reports 1971, p. 16 and p. 22.
39. Commission on Human Rights res. 31 (XXXVI) and 27 (XXXVI)(1980); General
Assembly res. 3/173 (1978) and 341175(1979).
40. Ai33iliAdd. 1 (1978); see also Ai96OliAdd. 1 (1974).
41. See the address by the Secretary-General to the World Conference to Combat Rac-
ism and Racial Discrimination, 1978, UN Sales No. E.79.XIV.2 (AICONF.92140) pp. 29-33.
42. Colombian-Peruvian asylum case, Judgment of November 20, 1950, Z.C.J. Reports
1950, p. 266.
43. Haya de la Torre case (ColombiaiPeru), Judgment of June 13, 1951, Z.C.J. Reports
1951, p. 71.
44. 132 League of Nations Treaty Series 323; American Journal of Znte?xational Law,
Vol. 22 (1928), p. 158.
45. International Status of South West Africa, Advisory Opinion: Z.C.J. Reports 1950, p.
128; South West Africa - Voting procedure, Advisory Opinion of 7 June 1955:Z.C.J. Reports
1955, p. 67; Admissibility of hearings of petitioners by the Committee on South West
Africa, Advisory Opinion of June lst, 1956; Z.C.J. Reports 1956, p. 23; South West Africa
Cases (Ethiopia v. South Africa; Liberia v. South Africa, Preliminary Objections, Judg-
ment of 21 December 1962; I.C.J. Reports 1962, p. 319; South West Africa, Second Phase,
Judgment, I.C.J. Reports 1966, p. 6; Legal consequences for States of the continued pres-
ence of South Africa in Namibia (South West Africa), Advisory Opinion, Z.C.J. Reports
1971, p. 16.
46. Interpretation of Peace Treaties, Advisory Opinion: Z.C.J. Reports 1950, p. 65 and
Second Phase ibid., p. 221.
47. Reservations to the Convention on Genocide, Advisory Opinion: Z.C.J. Reports 1951,
p. 15 and p. 23.
48. Barcelona Traction, Light and Power Company, Ltd., Judgment of 6 February 1970,
Z.C.J. Reports 1970, p. 3, paragraph 34 on p. 32.
49. Effect of awards of compensation made by the U.N. Administrative Tribunal, Advi-
sory Opinion of 13 July 1954, I.C.J. Reports 1954, p.47.
50. Judgments of the Administrative Tribunal of the International Labour Organisation
upon complaints made against the United Nations Educational, Scientific and Cultural
Organization, Advisory Opinion of 23 October 1956, I.C.J. Reports 1956, p. 77.
51. Application for Review of Judgment No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 166.
52. Australia v. France, and New Zealand v. France, Judgments of 20 December 1974,
Z.C.J. Reports 1974, p. 253 and p. 457.
53. United States of America v. Iran, Order of 15 December 1979, contained in Security
Council Dot. S/13697 (1979).
54. See M.E. Tardu, Human Rights: The International Petition System (1979-80) Vol. I
and General Introduction to Vol. 2.
55. E/259 (1947) paras. 21 and 22.
56. E/281/Rev. 1 (1947).
57. Reports of the second session of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities (1949), E/CN.4/351, paragraphs 28-30, resolution G, and draft
resolution VI; and of the 3rd session (1950), EiCN.41358, paragraphs 19-21 and draft resolu-
tion VI; Report of the 3rd session of the Sub-Commission on Freedom of Information and of
the Press (1949), E.S.C.O.R. 9th session (19491,Supplement No. 10 A, E/1369, Chapter V,
paragraphs 22-27, draft resolution B.
58. E/1681 (1950).
59. For a comprehensive restatement of Lauterpachts views, see his International Law
and Human Rights, New York, Praeger, 1950 (reprinted 1968), pp. 223-262.
60. Many of the documents relating to the question of communications concerning human
rights are reproduced in full or in summary form in Sohn and Buergenthal, International
Protection of Human Rights, Indianapolis, Bobbs-Merrill, 1973,pp. 748-856.See also Cassesse,
The Admissibility of Communications on Human Rights Violations, 5 RDHIHRJ, 1972,
pp. 375-393; Carey, UN Protection of Civil and Political Rights 1970, Chapter IX; idem,
Progress on Human Rights at the United Nations, 66 AJIL, 1973, pp. 107 et seq.; Hum-
phrey, The Right of Petition in the United Nations, 4 RDHIHRJ, pp. 463 et seq.; New-
man, The United Nations Procedures for Human Rights Complaints, 34 Annales de droit,
1974, pp. 129 et seq.; Ruzie, Du droit de petition individuelle en maitiere de droits de
lhomme, ibid., pp. 89 et seq.; Schwelb, Complaints by Individuals to the Commission on
Human Rights: 25 Years of an Uphill Struggle (1947-1971) in the Changing International
Community, Mouton, The Hague, 1973; and J. Moller, Petitioning the United Nations,
Universal Human Rights, Vol.l,No.4, pp 57-72.
61. See generally E/CN.4/1317 (1979) for the Secretary-Generals analysis of some rele-
vant UN procedures.
62. Commission resolution 15 (XXXV); for information see the report of the Special
Rapporteur in ECN.411371 (1980).
63. Repertory of United Nations Practice, Vol. III, Article 62 (11, par. 73 et seq.
64. See EiCN.411273 and Add. l-5 (1978).
65. E/CN.UL. 1483. The debate on this issue is recorded in E/1980/13, Annex V.
66. Reprinted in UN Bulletin of Human Rights, No. 27, Jan-March 1980, pp. 10-13.
67. E/CN.6/552(1972) Paras. 227-28.
68. Statement by Secretary of State Dulles before the United States Senate Judiciary
Committee, 6 April 1953, reproduced in Review of the United Nations Charter, A Collec-
tion of Documents, 83rd Congress, 2nd Session, Senate Document No. 87, 1954, pp.
295-296.
69. See Philip Alston, The United Nations Specialized Agencies and Implementation of
the International Covenant on Economic, Social and Cultural Rights, Columbia Journal of
Transnational Law, Vol. 18, 1979, pp. 79-118.
70. Recent materials relating to the periodic reporting procedure are contained in:
EiCN.411214 and Add. l-20; EiCN.411215 and Add.l-3; EiCN.411224;EiCN.411225;and EICN.
411300-1303.Cf. Also the reporting procedure under the International Covenant on Eco-
nomic, Social and Cultural Rights, described in Chapter 11, in&.
71. Standard directives relating to the preparation of studies by special rapporteurs are
contained in Sub-Commission resolution B of 1954 (EiCN.41703, para. 97) as amended by
Commission resolution III of 1954 (E/2573, para. 418).
72. In a 1980 resolution 19 (XxX111) the Sub-Commission recalled Commission res. 8
(XXIII) and recognized: (1) that the sources of information available to the Sub-Commission
are limited and dependent mostly on non-governmental organizations and (2) that the
Sub-Commission in order to carry out the mandate given to it requires adequate informa-
tion reflecting the situation in different countries and systems. It thus recommended the
creation of an information gathering service within the UN Division of Human Rights.
73. E/3456 (1961) paras. 34-49, Commission res.2(XVII)(1961).
74. E/CN.4/826/Rev.l, UN Sales No. 65 XIV.2.
75. UN Geneva, Press Release No. HRi928, 18 August 1980.
76. See Commission resolutions 23 (XXXIV) (1978) and 24 (XXXV) (1979); and
STIHRISER.AI2 (1978).
77. Commission resolution 24 (XXXVI) (1980); and ECOSOC resolution 1980130.

78. G.A. resolutions 1881 (XVIII) of 1963; 2054 (XX) of 1965; 2202 A (XXI) of 1966; 2307
(XXII) of 1967; 2396 (XXIII) of 1968; 2506 (XXIV) of 1969; 2671 (XXV) of 1970; 2775
(XXVI) of 1971; 2923 (XXVII) of 1972 and 3151 A B and D (XXVIII) of 1973; 3324 D
(XXIX) of 1974; 3116G and J of 1976;32/105 I of 1977; 33083 J of 1979; and 34193R of 1979.
79. See Commission res2(XXIII)(1967); E/4322 paras. 186-270;Ermacora in HRJIRDH,
Vol. I, No. 2, 1968, p.160; Carey, ibid., p. 531; and Carey, UN Protection of Civil and
Political Rights, New York, Syracuse Press (1970), p. 95.
80. In fact, the Chairman of the Commission sent a message to the Foreign Minister of
South Africa on 25 August 1980 calling on that -Government to cease certain activities of
which the Group learned during a field mission of enquiry in London, Tanzania, Angola and
Geneva. See United Nations Chronicle, September-October 1980, p. 67.
81. EICN.4/Sub.2/383/Rev.2. UN. Sales No. E.79.XIV.3 (1979).
82. AiCONF.32141, UN Sales No. E.68.XIV.2. (1968), res. XXIV.
83. See A/7649, E/4818 paras. 16-21 and General Assembly resolution 2646 and 2647
(XXV) (1970) and 2784 and 2785 (XXVI) (1971).
84. AiCONF.92140,UN Sales No. E.79.XIV.2. (1979).
85. The list was contained in EiCN.4Sub.21425 and Corr.l-2 and Add.l-6 (1979). See
Commission res. 11 (XXXVI) (1980), ECOSOC decision 19801131and Sub-Commission res. 2
(XxX111) (1980).
86. See AICONF.94IBP.16 and 17; and AICONF.94I7IRev.l (1980).
87. United Nations Institute for Training and Research Seminar, Geneva, October 1980,
report submitted to General Assembly in 1980.
88. See generally B.G. Ramcharan, United Nations Practice in Fact-Finding and on-
the-spot investigations in the field of human rights, International Institute of Human
Rights, Summary of Lectures, Eleventh Study Session, 1980, Strasbourg, 47 p.
89. Of particular importance in this regard are the reports prepared by the Special
Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of
the Occupied Territories which was established by General Assembly resolution 2443 (XXIII)
(1968). The Committee has submitted the following reports A/8089 (1970); A/8389 and Add.1
(1971); A/8828 (1972); A/9148 and Add.1 (1973); A/9817 (1974); A110272 (1975); A/31/218
(1976); A/32/284 (1977); A/33/356 (1978); A/34/631 (1979). Other studies relating to this issue
are listed in EICN.4iSub.21454 (1980). See also Sub-Commission res. 14 (XxX111) (1980).
90. The most recent reports are contained in A1341583and Add. 1; E/CN.4/1362; ECN.411363
and EiCN.411381.
91. See EiCN.4iSub.21414 and Add. 1-8; and EiCN.411335.
92. See Commission res. 32 (XXXVI) (1980).
93. EiCN.4iSub.21426 and ECN.411372.
94. See Sub-Commission res. 23 (XxX111) (1980).
95. United Nations Geneva Press Release HRi967, 19 September 1980.
96. These were considered by the Commission in 1981. See Commission resolution 28
(XXXVI) (1980) and Sub-Commission resolution 25 (XxX111) (1980). The Bureau, which is
elected at each session, is composed of the Chairman, three Vice-Chairmen and the Rappor-
teur, each of whom is from a different one of the five geo-political groups.
11 United Nations Institutions
Procedures Founded on
and
Conventions on Human Rights and

Fundamental Freedoms
Kamleshwar Das
GENERAL INTRODUCTION*
The United Nations has adopted conventions relating to human rights and
fundamental freedoms either in the General Assembly or by conferences
called by it or by the Economic and Social Council. It is not proposed here to
ascribe to the conventions their place or hierarchical position in relation to
other forms of action taken by the United Nations to achieve the goals of the
Charter relating to human rights.
Conventions on human rights have been adopted under normal rules of
procedure of the General Assembly (usually its Third Committee and, in
some instances, its Sixth Committee have been involved) or under those
adopted by conferences. They may or may not have been adopted by special
majority votes. While all Member States participate in the General Assem-
bly, the conferences have been open also to such non-Member States as have
been invited to participate. All such States have not actually taken part in the
deliberations or voted upon the conventions, but they were at all times free
to do so. The actual number of States attending conferences has differed but
has rarely been very high: 51 States participated in one and 26 in another.2
No general rules for the preparation of conventions on human rights have
been established as, for example, for the conventions to be drawn up by the
International Law Commission or by the International Labour Organisation.
It will suffice to note that most of them have gone through various stages in
their drafting. There has generally been enquiry as to the views of Govern-
ments (sometimes those of non-Member States) on draft conventions and
numerous bodies have been associated in the preparatory work.
There have been, in appropriate instances, consultations and participation
of United Nations offices, like that of the Office of the High Commissioner for
*The original version of this chapter was written by Kamleshwar Das and appeared in the
French edition of this book. This revised English version was prepared by Philip Alston
independently of the original author. However, a draft was sent to him for comments and
many of his suggestions were subsequently incorporated.
304 Kamleshwar Das
Refugees, and of specialized agencies, sometimes also of certain regional

inter-governmental organizations. At some stage or another in the prepara-
tion of conventions, non-governmental organizations in consultative status
with the Economic and Social Council have had opportunities to submit writ-
ten or oral observations to them. On occasion, proposals submitted, for ex-
ample, by a specialized agency, have been discussed and even espoused by a
member of a body and voted upon. Accordingly, it cannot be assumed unequiv-
ocally that all United Nations conventions on human rights contain texts
emanating from governments only and that they have no non-governmental
contents.4
As noted in previous chapters, an undertaking to draft an international bill
of human rights was given at the San Francisco Conference in 1945. The
relationship between the Universal Declaration of Human Rights and the
International Covenants has been noted in Chapter 10. The present Chapter,
in addition to dealing with the Covenants and the Optional Protocol, also
deals with other conventions on human rights and fundamental freedoms
adopted by the United Nations or conferences called by it (see annex I of this
textbook). All of them are now in force.
Whatever the position of States when participating or not in the adoption
of the conventions on human rights, all the conventions provide for ratifica-
tion or accession by States eligible to do so before they become binding on
them. Usually the States Members of the United Nations or members of the
specialized agencies, or parties to the Statute of the International Court of
Justice, or members of the International Atomic Energy Agency have been
eligible to ratify or accede to the conventions, with the exception of the
International Convention on the Suppression and Punishment of the Crime of
Apartheid, which is open to all States for ratification or accession. The num-
ber of ratifications or accessions required to bring a convention into force
varies from two to thirty-five.
The principle of pacta sunt servanda is of general application to all obliga-
tions internationally binding on a State under these conventions.7 The princi-
ple is of particular relevance in human rights conventions where obligations
are not only concerned with the external relations of States, but equally, if
not predominantly, with recognizing, reinforcing, improving, altering and
generally affecting national rights and status of the individual.
It would be unrealistic to disregard the question of reservations since they
affect the relationship between States parties to a convention, the scope and
contents of its provisions, and procedures and institutions established by it
particularly for its international implementation. It may be regretted, there-
fore, that the injunction of the General Assembly in resolution 598 (VI) of 12
January 1952 endorsing the International Law Commissions recommenda-
tion that clauses or reservations should be inserted in future conventions has
often been ignored and nowhere more conspicuously than in the International
Covenants on Human Rights.x
United Nations Institutions and Procedures 305
That international institutions of implementation face problems in the area

of reservations has already arisen in the Committee on the Elimination of
Racial Discrimination, established under the International Convention on the
Elimination of All Forms of Racial Discrimination which contains an article
on reservations.
In 1978, the Committee, after lengthy discussion on the subject of reserva-
tions, received replies to a number of questions which it had posed to the UN
Office of Legal Affairs. It then noted its agreement with the following clarifi-
cations made in the Offices document:
(a) The Committee must take the reservations made by States parties at the time of
ratification or accession into account: it has no authority to do otherwise. A decision-even a
unanimous decision-by the Committee that a reservation is unacceptable could not have
any legal effect;
(b) A reservation made at the time of signature has to be confirmed at the time of
ratification, otherwise it is considered as not having been maintained; and
(c) Declarations other than reservations have no legal effect at ail on the obligations of
the declaring State under the Convention-precisely because if this were not the case such
declarations would have to be considered as reservations.
National measures required to bring the provisions of a convention into

effect within States parties are of the utmost importance and they are the
primary means of implementing the provisions of human rights conventions. lo
These conventions frequently contain provisions requiring States parties to
take the necessary steps under their constitutional processes to adopt such
legislative or other methods as may be necessary to give effect, progressively
or otherwise, as the case may be, to the rights recognized in the conventions.
Substantive obligations, in many of these conventions are also stated in terms
of an obligation to enact legislation or to take other domestic action to achieve
specifically stated purposes.
The purposes of the international institutions and procedures described
hereafter, particularly those of the International Convention on the Elimina-
tion of All Forms of Racial Discrimination and the International Covenants
on Human Rights and the Optional Protocol to the Covenant on Civil and
Political Rights are: to offer aid, assistance, advice and co-operation; to guide,
persuade and stimulate self-help, especially under the reporting systems;
and to provide preventive and curative remedies through negotiations, fact-
finding, good offices, conciliation, expressionof views and, in certain instances,
suggestions and recommendations, general or otherwise, some of which are
placed on an optional basis requiring separate declarations by States parties. l1
It is not the aim to use coercion, to utilize punitive measures or to impose
specific sanctions. It may well be that further insight into the purpose of
these institutions and procedures will be forthcoming when the United Na-
tions completes its consideration of the subject of State Responsibility
which is being pursued currently by the International Law Commission.
306 Kamleshwar Das
The other conventions, besides the one adopted in 1973 on the question of
apartheid and the 1979 Convention on discrimination against women do not
have specific systems of international implementation, though some provide
for reports and information on giving effect to provisions of the Convention,
and, for the Convention relating to the Status of Refugees and the Protocol to
it, the Office of the United Nations High Commissioner for Refugees plays a
significant role in their implementation. Possibilities of an international crim-
inal jurisdiction have been brought up in the case of some Conventions.
United Nations organs and bodies have by resolutions provided for report-
ing and other means of ascertaining the application of the provisions of cer-
tain conventions, not always confining such actions to States parties.
Even in the case of the Covenants, the Protocol and the Convention on the
Elimination of All Forms of Racial Discrimination, UN organs like the Eco-
nomic and Social Council and the General Assembly are brought into the
machinery of implementation. Thus, there is a large uncharted area of con-
cern by the UN system which often seems to dissolve into the machineries of
implementation, and it would be a bold assertion to say that the machinery of
any convention will always remain isolated and self-contained. This is, how-
ever, not peculiar to the UN conventions on human rights, it may be and
often is true of the conventions on human rights of the specialized agencies
and other inter-governmental organizations. l2
Nor can the existence of this situation or its development be criticized on
narrow legal grounds. For it is well-nigh impossible to imagine the imple-
mentation of the Covenants without the co-operation of the individual, the
community, the States and all those who form parts of the international
order. It would be unrealistic, for instance, to consider human rights conven-
tions in isolation from international society, the existence of peace and disar-
mament; from political, economic and social conditions, relations and
development; from policies and programmes on population, environment,
natural resources, agriculture and land reform, science and technology, health
and education; from the problems arising out of foreign trade and invest-
ments and multinational corporations; from colonialism, racism, apartheid,
discrimination against women, and discrimination of other kinds; and from
the existence of rampant poverty among two-thirds of humanity; or not to
give special regard to the children, young people, the elderly and the aged,
the handicapped and the displaced.
It should be remembered that discussion and provisions of international
machinery for the implementation of conventions and agreements on human
rights matters, as well as some working experience of them, goes back a long
way, though it has received greater attention since the San Francisco Confer-
ence and the preparation of the International Bill of Human Rights. Its
importance was reiterated by the Economic and Social Council in Resolution
1101 (XL) of 2 March 1966, in which the Council recommended that future
conventions in the field of human rights should contain appropriate provisions
for their implementation and urged that the organizational and procedural
arrangements for the implementation of existing conventions in the field be
fully utilized.
It is to the future that the institutions and procedures of implementation of
human rights of the Covenants and of the other conventions are directed. That
is reason enough to consider them in a way which, while not being comprehen-
sive, contains the required material to understand them and provides for those
concerned with the place of United Nations conventions in the promotion and
protection of human rights. It is not their past history or doubtful adequacy, or
even comparability to other international and regional systems, which is going
to determine their potentialities. They will become a living force in promoting
and protecting the dignity and worth of the human person and in the pursuit of
his or her development, happiness and equality in larger freedom only through
a multi-disciplinary approach, which avoids long-term disunity and helps to
resolve deep-rooted problems and tensions, however intractable they may
appear to be. Accordingly, there is need for knowledge and comprehensive
treatment of the subject with vision and understanding on the part of govern-
ments and others, particularly non-governmental organizations, various insti-
tutions and universities and academicians, as well as writers in law, politics,
economic, social and cultural matters. There must of course be recourse to the
voluminous documentation of the United Nations which has much to offer in
the way of understanding the fengs and aspirations of the governments and
the peoples they represent. Much more needs to be known about national
institutions and systems, both in theory and in practice to gain a better
perspective of the issues and problems which will face the international insti-
tutions and procedures. There is need, further, for greater public awareness
and popular participation, and deliberations within countries, between gov-
ernments, non-governmental bodies, the community and individuals, as well
as for codes and measures of self-discipline and self-regulation in crucial areas
of public and private life, especially in many professions, occupations and
organizations.
(a). The International Convention on the Elimination of All Forms of Racial
Discrimination
The Convention, which had 108 States parties as of January 1, 1982, provides
for a Committee on the Elimination of All Forms of Racial Discrimination of
eighteen experts of certain qualifications, nationals of States parties nomi-
nated and elected by them. The Committee receives reports and information
from States parties to the Convention on measures which they have taken to
give effect to the provisions of the Convention, on the basis of which the
Committee may make suggestions and general recommendations. The Com-
mittee lends its good offices to the States parties concerned who submit a
matter to it concerning the failure to give effect to the provisions of the
Convention after an initial exchange between them of inter-States communica-
308 Kamleshwar Das
tions and on failure of adjustment of the matter to their satisfaction by any

means open to them. The functions of the Committee are to ascertain the
requirements relating to the exhaustion of domestic remedies and to obtain
and collate all the information it deems necessary. After this an ad hoc
conciliation commission is appointed, normally consisting of members agreed
to by parties to a dispute, to consider the matter. The Commission, after fully
considering the matter submits a report which may contain such recommenda-
tions as it may think proper for the amicable solution of the dispute. The
Committee may also receive and consider communications from individuals or
groups of individuals claiming to be victims of violations of any of the rights of
the Convention, provided the States parties have agreed by special declara-
tions to such consideration and at least ten States parties have made the
declarations. The Committee has been assigned advisory functions in relation
to copies of petitions and reports which it may receive from the competent
bodies of the United Nations relating to all Trust, Non-Self-Governing Ter-
ritories and other territories to which the Declaration on the Granting
of Independence to Colonial Countries and Peoples contained in General
Assembly Resolution 1514 (XV) applies. It is also to report annually to the
General Assembly on its activities. The Convention contains provisions con-
cerning the relationship of its implementation machinery to others of the
United Nations and specialized agencies, including other provisions of general
or special international agreements in force between States parties to the
Convention. There is, further, a settlement of disputes clause involving the
International Court of Justice.
i) THE COMMITTEE ONTHE ELIMINATIONOF RACIAL DISCRIMINATION(CERD)

(ARTICLESBAND 10)
Nature and composition

Article 8 relating to the establishment of a Committee on the Elimination of
All Forms of Racial Discrimination was based on a compromise between those
who wished it to be composed of representatives of States parties (a Commit-
tee of eighteen members elected by and from among States parties) and those
who desired to have persons with certain qualifications nominated by States
parties and elected by the General Assembly. According to Article 8, the
Committee consists of eighteen experts of high moral standing and acknowl-
edged impartiality, who serve in their personal capacity. Each State party
may nominate one person from among its own nationals. Elections are held by
secret ballot at a meeting of the States parties, where the presence of two-
thirds of the States parties constitutes a quorum, and those nominees who ob-
tain the largest number of votes and an absolute majority vote of those
present and voting are elected. In the election, consideration is given to
equitable geographical distribution and to the representation of the different
forms of civilization as well as of the principal legal systems. Members serve

for four years with elections for half of the membership every two years.
Seven elections have been held as of January 1982. The membership of the
Committee has reflected the changing pattern of geographical representation
among the States parties, which seems to have lately provided for election of
four experts each from Africa, Asia, Western Europe and other States and
three each from Latin American and Eastern Europe.
Rules of procedure, officers, secretariat cind place of meeting

Under Article 10 of the Convention the Committee adopts its own rules of
procedure. So far it has adopted rules of a general nature based upon those of
United Nations organs as well as certain rules pertaining to Articles 9 and 11
to 13 of the Convention, which it has decided to consider as provisional rules
of procedure. l4
A significant rule adopted by the Committee is Rule 14 whereby each
member on assuming his duties makes the following solemn declaration in
open Committee: I solemnly declare that I will perform my duties and
exercise my powers as a member of the Committee on the Elimination of
Racial Discrimination honourably, faithfully, impartially and conscientiously.
This declaration is the same as that made by members of the International
Court of Justice under Article 5 of the rules of the Court.
The rules provide for two regular sessions annually, each of three weeks
duration. Special sessions are to be convened by the Committees decision
and, when not in session, by the Chairman in consultation with the officers of
the Committee or at the request of the majority of its members or a State
party. A majority of the members of the Committee constitute a quorum for a
meeting, but the presence of two-thirds of the members is required for a
decision to be taken. Subsidiary bodies may be set up as the Committee
deems necessary. The Committee defines their composition and mandates,
but leaves them free to elect their officers and adopt their own rules of
procedures, subject to the provisions of the Convention and the financial
implications involved. The meetings of the Committee and its subsidiary
bodies are held in public, unless the Committee decides otherwise, or it
appears from the relevant provisions of the Convention that the meeting
should be held in private.
The annual reports of the Committee to the General Assembly show that
actions are often taken in the Committee without a formal vote. As the rules
stand, decisions in the Committee are to be made by a majority vote, except
where otherwise provided for by the Convention. In a meeting, for which a
quorum of two-thirds of the members of the Committee is required for deci-
sions, such decisions may be adopted by the affirmative vote of seven mem-
bers or less since, following United Nations practice, members present and
voting are regarded as those casting an affirmative or negative vote. In
contrast, Article 39.2(b) of the Covenant on Civil and Political Rights stipu-
310 Kamleshwar Das
lates that decisions of the Human Rights Committee shall be made by a

majority vote of the members present.
As the reports to the General Assembly often set out various views ex-
pressed in the Committee, sometimes even identifying the members who
made them, the Committee has never formally discussed the question of
whether dissenting views or reservations made by individual members should
be specifically set out in its reports but, where so requested by a member,
this has usually been done.
In accordance with Article 10.2 of the Convention, the Committee elects its
officers for a term of two years. So far it has elected a Chairman, three
Vice-Chairmen and one Rapporteur, usually following the principle of re-
gional geographical distribution.
Although the expenses of the Committee members for their travel and
daily subsistence allowances are borne by States parties, the Committees
main expenses fall upon the regular budget of the United Nations. The Com-
mittees secretariat is to be provided by the United Nations, which means
making available personnel for its substantive work as well as all conference
and documentation services and facilities.
While Article 10 states that the meetings of the Committee are normally to
be held at Headquarters, any meetings which the committee may hold away
from Headquarters which involve extra expense by the United Nations have
to be approved by the General Assembly.
Documents and their availability

Until 1974, distribution of the Committees documents, with the exception
of the annual report to the General Assembly, was restricted to members,
States parties, and others directly concerned. Thereafter States reports were
made generally available if so requested by the States parties. Since 1977
they have been available unless States parties request otherwise. The sum-
mary records of public meetings have also been made available to the public
since 1974. I5
Casual vacancies
To fill a casual vacancy the State party whose expert has ceased to function
as a member of the Committee appoints another expert from among its
nationals subject to the approval of the Committee.16 When the question of a
casual vacancy arose for the first time, the Secretary-General informed the
Committee of Communications he had received from the expert countrys
Permanent Mission to the United Nations about his transfer to other work
and his inability to continue as a member, as well as the nomination of
another person to take his place.
Thereupon, the Committee adopted a revised Rule 13 of its provisional
rules of procedure. l7 The main changes were to provide for the name of the
expert appointed to be submitted to the Committee for approval by secret
ballot and, except in the case of a vacancy arising from a members death or
disability, the Secretary-General and the Committee act in accordance with
the procedure laid down only after receiving from the member concerned,
written notification of his decision to cease to function as a member of the
Committee.s What is required is a personal act consisting of a notification in
writing which should come from the member concerned and express his
personal decision. On this basis of agreement, the proposer of the revised
rule withdrew the word directly before the words from the member con-
cerned. ly This procedure was followed in the filling of a vacancy in 1976.
Possibility of appointing alternates or temporary substitutes for members

Proposals whereby a member of the Committee might, in certain circum-
stances, be enabled to designate an alternate have been made but withdrawn;
they were opposed mainly as being inconsistent with the nature of the mem-
bership provided for in the Convention.
Scope of material utilisable by members

A new rule was proposed to provide that, in the consideration of reports
and information under Article 9 or of copies of petitions and reports received
under Article 15, members of the Committee might raise any matter relevant
to the situation described in the documents before the Committee or related
to the implementation of the Convention in the territory of the State party
concerned.l The members of the Committee, it was pointed out, were ex-
perts, as provided in the Convention, and should not be expected to ignore or
put aside their expertise and merely confine themselves to a discussion of
information placed before them. They could and should use any relevant
information in order to discharge properly and adequately their functions
under the Convention, which did not prohibit recourse to such information.
This was also said to be borne out by the practice of the Committee.
On the other hand it was argued that the Convention restricted the sources
of information available to the Committee to reports and information submit-
ted under Articles 9 and 15. At the conclusion of the debate the Chairman
stated that it appeared from the discussion that the Committee would con-
tinue the practice it had followed to date allowing members to use any in-
formation they might have as experts.
ii) REPORTSANDI~~~RMATIONFROMST.~T~PARTIES
Types of reports and information and their purpose

Article 9 specifies three types of reports from States parties: initial re-
ports, biennial reports and additional reports; the first two are called peri-
odic reports by the Committee. Initial reports are due one year after the
entry into force of the Convention for the State concerned. Thereafter, re-
ports are due every two years. Additional reports are due whenever the
Committee so requests.
312 Kamleshwar Das
The Committee may request further information from the States par-
ties.2 The words if necessary at the end of the text were excluded in order
to avoid differences of opinion arising between members of the Committee
and the States parties on whether the necessity for the request existed or
not.
The purpose of the reports is to ascertain the legislative, judicial, adminis-
trative or other measures which States parties have adopted and which give
effect to the provisions of the Convention. 24The Committees Rules 64 and 65
specify that the Committee may, through the Secretary-General, inform the
States parties of its wishes regarding the form and contents of the periodic
reports and for additional reports or further information, it may indicate the
manner as well as the time within which either is to be supplied.
At its first session in 1970, the Committee adopted a set of guidelines
concerning the form and contents of States reports under Article 9. These
were replaced by a revised set adopted at the Committees 21st session, in
1980.2
Non-submission of reports and information

Rule 66 of the Committee provides that, in the event of the non-receipt of
reports or non-compliance with requests for further information, the Commit-
tee may transmit a reminder to the State party concerned. If that is unpro-
ductive the Committee includes a reference to that effect in its annual report.
In 1981, the Committee reported that it had received 425 of the 483 reports
due under Article 9(I) as of August 1981. In addition 61 supplementary
reports had been received from States Parties. In one case the Committee
had sent 12 reminders to a State and in another it had sent 1O.2
Consideration of reports and information from States parties

The examination of the reports and other information furnished by States
parties has been held in full Committee and in public meetings. The Commit-
tee has, during its various sessions, provided new rules or adopted general
recommendations and followed certain practices, procedures and methods for
its examination of the reports and concerning their contents, but these are
constantly evolving.
At first, the Committee made general requests for supplementary rather
than additional reports and called for additional information to fill the missing
information in the Committees guidelines, but usually refrained from making
any direct request to a State party for further information of a specific
nature. These general requests were sent with the relevant records of dis-
cussion to the States parties concerned.
As a consequence of paragraph 5 of Resolution 2783 (XXVI) of 6 December
1971 of the General Assembly where the Assembly expressed the view that
the work of the Committee would be facilitated if the reports submitted by
States parties conformed to the guidelines laid down by the Committee for
that purpose and if the Committee invited representatives of States parties

to be present at its meetings when their reports were examined, the Com-
mittee adopted Rule 64A.
Under Rule 64A the Committee, through the Secretary-General, notifies
the States parties (as early as possible) of the opening date, duration and
place of the session at which their respective reports are to be examined.
Representatives of the States parties may be present at the meeting when
their reports are examined. The Committee may also inform the State party
from which it decides to seek further information that it may authorize its
representative to be present at a specified meeting. Such a representative
should be able to answer questions which may be put to him by the Commit-
tee and make statements on reports already submitted by his State and may
also submit additional information from his State.
In practice, with few exceptions, States parties have been represented at
the Committee when their reports were examined and have made statements
and answered questions or said that their next report would deal with them.
The few exceptions may be ascribed to many reasons but not, it would ap-
pear, from any desire on the part of a State party not to co-operate. The rule
is also couched in non-mandatory terms and the Committee has retained its
freedom to proceed with its consideration of a report whether a representa-
tive of the State concerned is present or not. In 1980 the General Assembly
(Res 35/40) urged all States parties to extend full co-operation to the Commit-
tee and noted with regret that on one occasion such co-operation was with-
held by one State party.
Also in response to GA res.2783 (XXVI)(1971), the Committee adopted
Rule 66A in which three paragraphs give an indication of how the Committee
views its mandate under Article 9 when examining reports of States parties.
The Committee, first, is to determine whether the report provides the
information referred to in the relevant communications of the Committee.
Second, if a report of the State party, in the opinion of the Committee,
does not contain sufficient information, in practice, specific decisions may or
may not be taken in this regard in the case of each report, but usually States
have been asked to submit their next reports in the light of the discussions
held in the Committee, as reflected in the summary records of the meetings.
Sometimes, of course, such information is given at the meetings of the Com-
mittee by the representative of the State party concerned, invited under
Rule 64A.
Third, if, on the basis of its examination of the reports and information
supplied by the State party, the Committee determines that some of the
obligations of that State under the Convention have not been discharged, it
may make suggestions and general recommendations in accordance with Ar-
ticle 9(2) of the Convention. The Committee has so far adopted five general
recommendations and a subsequent request for specific information which
was related to one of them.
314 Kamleshwar Das
A further suggestion, that the Committee determine to be unsatisfactory

any report which, in its opinion, indicated that a State party had not dis-
charged all its obligations under the Convention, and request that State
party to submit information on the manner in which it proposed to discharge
its undischarged obligations, was considered as being too rigid and as apply-
ing the same criteria to every report, which would prevent the Committee
from taking into account the special circumstances of each country and not
leave the Committee the required flexibility.
It may be recalled that, from the beginning, the classification of reports as
satisfactory or unsatisfactory was intended to indicate the relative com-
pleteness or incompleteness of the information contained in the reports and
not the degree of fulfillment of the anti-discrimination requirements laid
down in Articles 2 to 7 of the Convention. As the reports began to fulfil1 the
reporting requirements more completely and attention in considering them
focused on the substantive significance of the information provided, the pre-
vious practice became not only less necessary but perhaps less useful and also
more likely to mislead. In 1974, the Committee discarded the previous prac-
tice and the summary of the deliberations in the Committee in its annual
report to the General Assembly began to reflect on a country by country
basis the evaluation made by the Committee of the various features of the
reports of States parties as such, as well as the views expressed by the
Committee or by its members regarding the legislative, judicial, administra-
tive or other measures which give effect to the provisions of Part I of the
Convention or failed to do so. Accordingly, with the representatives of the
States parties concerned usually being present, the Committee has adopted a
variety of opinions based on Rule 66A, generally coupled with an expression
of hope for continued co-operation of the governments with the Committee.
Ever since its third session, the Committee has been seized on several
occasions with information from reporting States to the effect that racial
discrimination was being practised on parts of their national territory outside
their effective control as a result of occupation or other forms of de facto
control by States not Parties to the Convention.
On two aspects of such situations there has never been disagreement among
members of the Committee: that the political or other disputes leading to, or
deriving from, the occupation or de facto control of the territories in question
lay outside the competence of the Committee; and that the Committee could
not be indifferent to reported practices of racial discrimination on the terri-
tory of States parties to the Convention.
Differences of opinion have arisen among members of the Committee,
however, over such questions as the receivability of the information con-
cerned under article 9 of the Convention and the competence of the Commit-
tee to take any action at all-or, if competent, the kind of action it could
take-with regard to the information before it, in discharge of its obligations
under article 9. The fact that all States occupying or controlling the territo-
ries under consideration had not ratified or acceded to the Convention cre-
ated other problems; the Committee lacked the competence to request them
to provide information and was prohibited by the Convention from inviting,
or permitting, their representatives to participate in its examination of the
reports before it. Since the tenth session, all the decisions adopted by the
Committee on these issues have been taken by consensus. The cases in ques-
tion have involved the Panama Canal Zone, the Golan Heights, Cyprus, the
West Bank of the River Jordan and the Sinai Peninsula.
In the decisions it adopted regarding the reports on those territories, the
Committee has: requested further information; asked the reporting State to
keep it informed on future developments; taken note of the information be-
fore it; taken note of relevant resolutions, adopted by competent organs of
the United Nations; taken note of relevant reports of United Nations bodies;
expressed its concern; expressed its hope for the restoration of certain basic
human rights; drawn the attention of the General Assembly to the informa-
tion at hand; asked the General Assembly to take certain specified steps;
and/or asked the General Assembly to ensure that no changes which have the
effect of establishing racial discrimination are brought about in the territories
concerned.27 In 1980 the Assembly (Res 35/40) expressed its grave concern
that some States parties owing to reasons beyond their control, were being
prevented from fulfilling their obligations under the Convention in parts of
their respective territories.
A proposal that the Committee should inform a reporting State that the
procedure under Article 11 was applicable in cases where the State submit-
ted a report or information under Article 9 concerning measures affecting its
territory but which had been taken by another State party was rejected by
the Committee in 1972.s
Suggestions and general recommendations of the Committee and comments

thereon by States parties
The Committee may make suggestions and general recommendations based
on the examination of the reports and information received from the States
parties. Such suggestions and general recommendations, according to Article
9(2), shall be reported to the General Assembly together with comments, if
any, from States parties.
An amendment in the Third Committee of the General Assembly to omit
general before recommendations was rejected. Another amendment to
delete the reference to suggestions, since it implied that the Committee
would make specific proposals, was also rejected. An amendment was adopted
to omit the words the and concerned from the second sentence of para-
graph 2 of Art. 9, which had provided that the suggestions and general
recommendations of the Committee should be reported to the General As-
sembly together with comments, if any, from the States parties concerned.
At the second session, the Committee, taking account of the General As-
316 Kamleshwar Das
sembly discussion, decided in Rule 67 that such suggestions and general

recommendations as the Committee may make under Article 9 of the Con-
vention shall be communicated by the Committee through the Secretary-
General to the States parties for their comments and that the Committee
may, when necessary, indicate a time limit within which those comments are
to be received. It was agreed that the Committee shall report its suggestions
and general recommendations to the General Assembly together with com-
ments from States parties, if any were received.
The Committee has made no-suggestions but has adopted five general
recommendations, which are described hereafter. The comments of the States
parties on these general recommendations so far have been submitted in full
to the General Assembly in the Committees annual reports. The Committee
has not undertaken any general analysis of these comments; some analysis of
comments on General Recommendation III were, however, forwarded to the
General Assembly.
In its General Recommendation II, the Committee considered some re-
ports from States parties which expressed or implied the belief that the
information mentioned in the Committees guidelines need not be supplied by
States parties on whose territories racial discrimination did not exist. The
Committee stated, however, that since all the categories of information listed
referred to obligations undertaken by the States parties under the Conven-
tion, communication is addressed to all States parties without distinction,
whether or not racial discrimination exists in their respective territories.
In its General Recommendation III, the Committee stated that it had con-
sidered some reports from States parties containing information about mea-
sures taken to implement resolutions of the United Nations organs concerning
relations with the racist regimes in southern Africa. The Committee noted the
provisions of the tenth preambular paragraph and Article 3 of the Convention
and General Assembly Resolution 2784 (XXVI) relating to trade with South
Africa. It expressed the view that measures adopted on the national level to
give effect to the provisions of the Convention are interrelated with mea-
sures taken on the international level to encourage respect everywhere for
the principles of the Convention. The Committee welcomed the inclusion in
the reports submitted under Article 9 by any State party which chooses to do
so, of information regarding the status of its diplomatic, economic and other
relations with the racist regime in South Africa. The practice of the Commit-
tee inaugurated in its adoption of this general recommendation was commended
by the General Assembly in Resolution 3266 (XXIX) of 10 December 1974.
Further views of the Committee on this recommendation were set out in its
Decision 2 (XI) of 7 April 1975. In 1980 the Assembly (Res 35/40) commended
the Committee for paying greater attention to the question of the elimination
of the policy of apartheid in South Africa and Namibia and invited States
parties when submitting information under the revised guidelines to include
information on their relations with the racist regime of South Africa.
In General Recommendation IV, the Committee, having considered re-

ports submitted by States parties and bearing in mind the need for the
reports to be as informative as possible, invited States parties to endeavour
to include in their reports relevant information on the demographic composi-
tion of the population referred to in the provisions of Article 1 of the Convention.
General Recommendation I was adopted on the basis of the consideration
at its fifth session of reports submitted by States parties when the Commit-
tee found that the legislation of a number of States did not include the
provisions envisaged in Article 4 (a) and (b) of the Convention, the implemen-
tation of which (with due regard to the principles embodied in the Universal
Declaration of Human Rights and the rights expressly set forth in Article 5 of
the Convention) was obligatory under the Convention for all States parties.
The Committee accordingly recommended that the States parties whose legis-
lation was deficient in this respect should consider, in accordance with their
national legislative procedures, the question of supplementing their legisla-
tion with provisions conforming to the requirements of Article 4 (a) and (b) of
the Convention.
The subject matter of General Recommendation I was followed later by a
request by the Committee for information from States parties concerning
their obligations under Article 4 of the Convention. The Committee requested
States parties: a) to indicate what specific penal legislation designed to
implement the provisions of Article 4 (a) and (b) had been enacted in their
respective countries and to transmit to the Secretary-General the texts
concerned as well as such provisions of general penal law as must be taken
into account when applying such specific legislation; and b) where no such
specific legislation had been enacted, to inform the Committee of the man-
ner and the extent to which the provisions of the existing penal laws, as
applied by the Courts, effectively implemented their obligations under Arti-
cle 4 (a) and (b).
In the Committees 1945 annual report the need for information on adminis-
trative and other measures was noted. In Recommendation V of 13 April
1977 the Committee requested every State Party to provide adequate in-
formation on the measures which it has adopted and which give effect to the
provisions of article 7. (relating to teaching, education, culture and
information).
Initiation qf inter-state communications (article 11, paragraph 3)

Under Article 11 of the Convention, if a State party considers that another
State party is not giving effect to the provisions of the Convention, it may
bring the matter to the attention of the Committee. The Committee is then to
transmit the communication to the State party concerned. Within three months,
the State which receives the communication is to submit to the Committee
318 Kamleshwar Das
written explanations or statements clarifying the matter and the remedy, if

any, that it may have adopted.
According to Rule 68 of the rules of procedure of the Committee, when a
matter is brought to the attention of the Committee in accordance with
Article 11, the Committee shall examine it at a private meeting and then
transmit it to the State party concerned through the Secretary-General. The
Committee, in examining the communication, shall not consider its substance.
kny action at this stage by the Committee in respect of the communication
shall in no way be construed as an expression of its views on the substance of
the communication.
After several attempts to achieve unanimity failed as regards the action
to be taken while the Committee is not in session, the Committee adopted the
following procedure: the Chairman brings the matter to the attention of the
members of the Committee, if it is not in session, by transmitting copies of
the communication on behalf of the Committee, specifying that they have
three weeks for their replies. Upon receipt of the consent of the majority of
the Committee or if, within the time limit, no replies are received, the Chair-
man is to transmit the communication to the State party concerned through
the Secretary-General without delay. In the event of any replies being
received which represent the views of the majority of the members of the
Committee, the Chairman, while acting in accordance with such replies, is
to bear in mind the requirement of urgency in transmitting, on behalf of the
Committee, the communication to the State party concerned. The Committee
or the Chairman, on behalf of the Committee, is to remind the receiving State
of the time limit of three months for its reply. When the reply has been
received, the procedure laid down above is to be followed in transmitting it to
the State party initiating the communication.
Referral to the Committee of a matter not adjusted to the satisfaction of the

States parties (Article 11, paragraph 2)
If the matter raised in the initial communication by a State party is not
adjusted to the satisfaction of both parties, either by bilateral negotiation or
by any procedure open to them within six months after the receipt by the re-
ceiving State of the initial communication, either State has the right to refer
the matter again to the Committee by notifying it and also the other State.
The reference to the matter being adjusted to the satisfaction of both
parties in no way diminishes the fact that such satisfaction must relate to
adjustment concerning the provisions of the Convention to which effect is not
being given, since that is the only ground on which an initial communication is
submitted, although there is no reference, as in Article 12, paragraph 1 (a) of
the Convention, to an amicable solution of the matter on the basis of respect
for the Convention.
The Committee has in Rule 70 provided that the Chairman, through the
Secretary-General, is to inform the States parties concerned of the forthcom-
ing consideration of the matter not later than thirty days in advance of the
first meeting of the Committee, in the case of a regular session, and at least
eighteen days in advance of the first meeting, in the case of a special session.
Consideration of a matter referred to the Committee, including exhaustion of

domestic remedies (Article 11, paras. 3 to 5)
When a matter has been referred to the Committee, it shall deal with it
after it has ascertained that all available domestic remedies have been in-
voked and exhausted in the case, in conformity with generally recognized
principles of international law. This shall not be the rule where the applica-
tion of the remedies is unreasonably prolonged.
According to paragraphs 4 and 5 of Article 11, in any matter referred to the
Committee, it may call upon the States parties concerned to supply any other
relevant information, and they have the right to send representatives to take
part in the proceedings of the Committee, without voting rights, while the
matter is under consideration.
Rule 69 of the rules of Procedure of the Committee perhaps states these
purposes better in providing that the Committee may call upon the States
parties concerned to supply information relevant to the application of Arti-
cle 11 of the Convention; the Committee may indicate the manner as well as
the time within which such information is to be supplied, while Rule 70
requires proper notifications of the meetings of the Committee to be con-
veyed to the States parties.
While providing for various sources of information, written and oral, to be
made available to the Committee, there is no guidance to it on how it is to
ascertain whether all available domestic remedies have been exhausted and
on whom the burden of proof lies in this respect. Such difficulties and the
possibility of abusing the provision on exhaustion of remedies led, in the
General Assembly, to a proposal for its deletion, but it was rejected. The
Assembly also rejected that the reply of the State receiving the initial com-
munication should be the basis for ascertaining the exhaustion of domestic
remedies.
Objections were voiced in the Committee on the Elimination of Racial
Discrimination to a proposal made by a member to provide that the Commit-
tee may also invite any person whose rights under the Convention are alleged
by a State party to have been violated by another State party to appear
before the Committee or otherwise submit a written statement. The propo-
nent withdrew the proposal stating that he might raise the issue again when
the Committee dealt with a specific case under Article 11 of the violation of
Article 5 of the Convention.
Establishment of a conciliation commission and its purpose (Article 12)

Once the Committee has ascertained that all available domestic remedies
have been invoked and exhausted or, if it considers the application of reme-
320 Kamleshwar Das
dies to be unreasonably prolonged, and after it has obtained and collated all
the information it deems necessary, its chairman appoints an ad hoc concilia-
tion commission whose good offices are to be made available to the States
parties concerned, with a view to an amicable solution of the matter on the
basis of respect for the Convention. States parties to the dispute are to share
equally all the expenses of the members of the Commission.
Nature of the Commission, its appointment and its composition (Article 12,
paras. 1 and 2)
The Chairman of the Committee appoints five persons as members of an ad
hoc Commission with the unanimous consent of the parties to the dispute. If
the States parties to the dispute fail to reach agreement within three months
on all or part of the composition of the Commission, its members not agreed
upon by the States parties to the dispute are to be elected by secret ballot, by
a two-thirds majority vote of the Committee from among its own members.
The members of the Commission are to serve in their personal capacity. They
are not to be nationals of the States parties to the dispute or of a State not
party to the Convention.
As one of the sponsors of the proposal stated, it was natural to let the
parties to the dispute, who were directly concerned, decide on the members
of the Commission and it was reasonable to hope that States concerned would
always manage to reach agreement on persons of such standing that neither
State could object to them. In order to prevent the conciliation procedure
from being paralyzed by lack of such agreement, the sponsors had provided
for those members of the Commission not agreed upon by the parties to the
dispute to be elected by a two-thirds majority vote of the Committee from
among its own members. If that was deleted, the only remedy for failure of
agreement would be to refer the dispute to the International Court of Jus-
tice, which was provided for in the final clauses, but that was not part of any
compulsory procedure and it also gave rise to many reservations.
The full and unanimous consent of the States parties to the dispute to the
composition of the Commission was, however, a pre-condition for a number of
delegations. Such consent was claimed as a primary requirement for an ami-
cable settlement and for full confidence in the conciliation procedure, as well
as the only effective method to ensure that the decision of a Commission was
carried out; there was also no reason to believe that States parties would be
unable to find five conciliators within the period of three months, if they
really wished to do so, whereas members to be elected to the Commission
under the proposed text might be precisely those not agreed upon by the
States parties concerned, which would be utterly paradoxical.
The Third Committee rejected an amendment to delete the provision em-
powering the Committee to elect those members of the Conciliation Commis-
sion on which States parties could not agree from among the Committees
membership.
Rule 71 of the rules of procedure of the Committee provides for the Chair-
mans notifying States parties to the dispute and undertaking consultations
with them concerning the composition of an ad hoc commission, and Rule 72
provides that, upon receiving the unanimous consent of the States parties,
the Chairman is to proceed to appoint the members of the Commission and to
inform the States parties to the dispute of the composition. Rule 73 provides
that if, within three months of the Chairmans notification, States parties to
the dispute fail to reach agreement on all or part of the composition of the
Commission, the Chairman is to bring the situation to the attention of the
Committee. The Committee then proceeds to elect by secret ballot, by a
two-thirds majority vote, the members of the Commission concerned from
among its own members, and the Chairman informs the States parties to the
dispute of the composition of the Commission.
Rule 74 provides that upon assuming his duties, each member of the Com-
mission is to make the following solemn declaration at the first meeting of the
Commission: I solemnly declare that I will perform my duties and exercise
my powers as a member of the ad hoc Conciliation Commission honourably,
faithfully, impartially and conscientiously.
Whenever a vacancy arises in the Commission, according to Rule 75, the
Chairman fills it as soon as possible in accordance with the procedures laid
down in Rules 71 to 73, upon receipt of a report from the Commission or upon
notification by the Secretary-General.
The Committee reported to the General Assembly that one member ex-
pressed the view that a vacancy would arise if one of the parties to a dispute,
having originally consented to the composition of an ad hoc Conciliation Com-
mission, subsequently withdraws that consent with respect to a member of
the Commission. Other members of the Committee questioned the view that
subsequent withdrawal of consent by a party to a dispute would create a
vacancy in the Commission. No action was taken on this matter.
Rules of procedure, officers, meeting place and secretariat (Article 12, paras.
3-5 and 8)
The Commission elects its Chairman and adopts its own rules of procedure.
Its meetings are normally held at Headquarters or any other convenient
place determined by the Commission. The secretariat of the Committee also
serves the Commission.
Proceedings and report of an ad hoc Commission (Article 12, para. 8, and

Article 13)
When the Commission has fully considered the matter, it prepares and
submits to the Chairman of the Committee a report embodying its findings on
all questions of fact relevant to the issue between the parties and containing
such recommendation as it may think proper for the amicable solution of the
dispute. This provision of Article 13(l) differs from that of paragraph 1 (a) of
322 Kamleshwar Das
Article 12 under which the good offices of the Commission are to be made
available to the States concerned with a view to an amicable solution of the
matter on the basis of respect for this Convention. This difference probably
is unintentional because the purpose of setting up an ad hoc Conciliation
Commission is stated in the provision of Article 12(l)(a), whereas Article
13(l) concerns the report which the Commission is to draw up, and any
recommendations which the Commission may make for an amicable solution
to the dispute can only be on the basis of respect for the Convention. It may
also be recalled that the Commission will have before it, under Article 12(8),
the information obtained and collated by the Committee, and the Commission
may call upon the State concerned to supply any relevant information.
The report of the Commission is communicated by the Chairman of the
Committee to each of the States parties to the dispute. These States, within
three months, inform the Chairman whether or not they accept the recom-
mendations contained in the report of the Commission. Rule 77 of the rules of
procedure provides for both the report of the Commission and the informa-
tion received from the States parties to the dispute concerning the recom-
mendations contained in the report to be transmitted to the members of the
Committee.
After the expiration of the time limit of three months, the Chairman of the
Committee communicates the report of the Commission and the declarations
of the States parties concerned to the other States parties to the Convention.
With this step the conciliation procedure comes to an end. An amendment by
El Salvador, submitted to the Third Committee of the Assembly, to provide
that if they [the States parties to the dispute] do not accept the recommen-
dations, the Committee shall reconsider the problem until a satisfactory solu-
tion is reached, was not discussed and it was rejected by eleven votes to ten,
with 62 abstentions.
As of January 1982 no disputes had been referred to the Committee under
Article II and the procedures described above have thus not been further
developed in practice.
iv) COMMUNICATIONS FROM INDIVIDUALSANDGR~~P~ OF INDIVIDUALS

(ARTICLE 14)
Optional nature of the provisions

Paragraphs 1, 3 and 9 of Article-14 make clear the optional nature of the
article. A State party may at any time declare that it recognizes the compe-
tence of the Committee on the Elimination of Racial Discrimination to receive
and consider communications from individuals or groups of individuals within
its jurisdiction claiming to be victims of a violation by that State party of any
of the rights set forth in the Convention. No communication is received by
the Committee if it concerns a State party which has not made such a declara-
tion. A declaration is deposited with the Secretary-General and may be with-
drawn at any time by notification to the Secretary-General, but such with-

drawal does affect communications pending before the Committee. The Com-
mittee can exercise the functions provided for in the article only when at least
ten States parties have made the declarations.
As of 1 January 1982 only seven States parties had made declarations:
Costa Rica, Ecuador, Italy, Netherlands, Norway, Sweden and Uruguay. On
several occasions the General Assembly has appealed to States parties to
study the. possibility of making declarations under Article 14.
Optional prior recourse to a body within a State partys legal order and its
functions and powers
After an initial proposal for a purely national machinery for considering
individual claims of violation of any of the rights enumerated in the Conven-
tion had been withdrawn in favour of a complex text which would have
provided for an in-between procedure for individual communications, prob-
lems still arose concerning the effect of any such machinery on the constitu-
tional, legal and political systems of various countries.
What was adopted by the General Assembly is in the nature of an optional
clause for a national machinery. It still poses many problems, as will become
evident and, in the light of Article 6 of the Convention on national protection,
remedies and reparation, it may be wondered whether it will play any signifi-
cant part in the implementation of the Convention, since it can hardly be used
by States parties to evade their obligations under Article 6.
The text adopted provides that any State party may establish or indicate a
body within its national legal order (hereafter referred to as the national
body) which is to be competent to receive and consider petitions from indi-
viduals and groups of individuals within its jurisdiction who claim to be
victims of a violation of any of the rights set forth in the Convention and who
have exhausted other available local remedies.
The national body keeps a register of petitions and certified copies of the
register are filed annually through appropriate channels with the Secretary-
General on the understanding that the contents shall not be publicly dis-
closed. Paragraph 5 of Article 14 stipulates that in the event of failure to
obtain satisfaction from the national body, the petitioner has the right to
communicate the matter to the Committee within six months.
In the absence of a national body whose name has been deposited with the
Secretary-General and transmitted to the other States parties, communica-
tions to the Committee on the Elimination of Racial Discrimination may be
sent directly to it without any pre-condition such as that set out in paragraph
5. None of the States parties who have so far made declarations under para-
graph 1 of Article 14 have mentioned anything about a national body.
Source of communication and its subject matter

Individuals or groups of individuals within a State partys jurisdiction claim-
ing to be victims of a violation by that State party of any of the rights set
324 Kamleshwar Das
forth in the Convention may send communications, provided that State party
has made the required declaration previously.
When a body within its national legal order has been established or indi-
cated by the State party concerned, the same persons as mentioned above
may communicate to it, provided they have exhausted other available local
remedies34 and, only in the event of failure to obtain satisfaction from the
national body within six months, may the Committee be seized of it.5
The use of the term individual or groups of individuals appears wide
enough to cover all individuals, whether nationals, non-nationals or persons
without nationality; and non-governmental organizations are not qua organi-
zations but as groups of individuals, so long as they are within the jurisdiction
of the State party concerned. According to paragraph 6 (a), the Committee is
not to receive anonymous communications.
Further texts providing that the Committee shall act on a communication
if it considers it to be receivable were moved but withdrawn on grounds
that they may be open to abuse, especially if no criteria were laid down
concerning receivability of a petition or its rejection. It was thought best to
leave to the Committee, which is empowered to adopt its own rules of proce-
dure, to decide whether and how it will deal, if at all, with the question of
receivability going beyond those specified in the Convention.
Functions and powers of the Committee

The Committee brings any communication referred to it, to the attention of
the State party alleged to be violating any provision of the Convention with-
out divulging the identity of the author unless he expressly consents. Within
three months, the receiving State submits to the Committee written expla-
nations or statements clarifying the matter and the remedy, if any, that may
have been taken by that State. The Committee considers communications in
the light of all information made available to it by the State party concerned
and by the petitioner, so long as it has ascertained that the petitioner has
exhausted all available domestic remedies, unless the application of the rem-
edies is unreasonably prolonged. The Committee forwards its suggestions
and recommendations, if any, to the State party concerned and to the peti-
tioner. It includes in its annual report to the General Assembly, submitted
under Article 9(2) of the Convention a summary of such communications and,
where appropriate, a summary of the explanations and statements of States
parties concerned and of its own suggestions and recommendations.
V) CONSIDERATION OF COPIES OF PETITIONS AND REPORTS REGARDING DEPENDENT

TERRITORIES (ARTICLE 15)
The article starts with a statement that, pending the achievement of the
objectives of the Declaration on the Granting of Independence to Colonial
Countries and Peoples (GA res. 1514(XV) of 1960), the provisions of the
Convention are in no way to limit the right of petition granted to those

peoples by other international instruments or by the United Nations and its
specialized agencies.7
The Committee receives copies of the petitions and submits expressions of
opinion and recommendations on these petitions to the bodies of the United
Nations which deal with matters directly related to the principles and objec-
tives of the Convention in their consideration of petitions from the inhabi-
tants of Trust and Non-Self-Governing Territories and all other territories to
which General Assembly Resolution 1514 (XV) applies, relating to matters
covered by the Convention which are before those bodies.
The Committee also receives from competent UN bodies copies of the
reports concerning the legislative, judicial, administrative or other measures
directly related to the principles and objectives of the Convention applied by
the administering Powers within the Territories and expresses opinions and
makes recommendations to those bodies. The Committee includes in its an-
nual report to the General Assembly a summary of the petitions and reports
it has received from United Nations bodies and the expressions of its opinion
and recommendations relating to them. Under paragraph 4, the Committee
may request from the Secretary-General all information relevant to the ob-
jectives of the Convention which is available to him regarding the territories.
Resolution 2106 B (XX), adopted by the General Assembly at the same
time as the Convention, called upon the Secretary-General to make available
to the Committee, periodically or at its request, all information in his posses-
sion relevant to Article 15 and requested the Special Committee of Twenty-
Four and all other bodies of the United Nations authorized to receive and
examine petitions from the peoples of colonial countries, to transmit to the
Committee periodically or at its request, copies of petitions from those people
relevant to the Convention for the comments and recommendations of the
Committee. These United Nations bodies were requested to include in their
annual reports to the General Assembly a summary of the action taken by
them under the terms of the resolution.
These provisions and the Assembly resolution were agreed upon after
much discussion and controversy surrounding the aim and purpose of the
article. Many of the texts proposed were considered by some to go beyond
the law of treaties by imposing obligations on States not parties to the Con-
vention. Among the proposals made were: to apply the provisions of the
Convention in full to the inhabitants of the dependent territories; to have the
Committee on the Elimination of Racial Discrimination receive directly peti-
tions regarding legislative, judicial, administrative or other measures adopted
by administering Powers to give effect to the provisions of the Convention,
or concerning violation of human rights stemming from racial discrimination;
to have the Committee examine such petitions, in consultation with the ad-
ministering Power concerned, with power to make appropriate recommenda-
tions; to omit reference to consultation with administering Powers but still to
Kamleshwar Das
provide for direct petition right to the Committee, which would then send its
expression of opinions and recommendations to the United Nations bodies
concerned; to have the Committee express itself and make recommendations
on the legislative, judicial, administrative or other measures applied by the
administering Powers within the territories to give effect to the provisions of
the Convention.
Disquietude was not dissipated by the new approach to the text of the
article, and it led the United Kingdom government to make the following
reservation to the Convention, which was not objected to under Article 20 of
it,:
The United Kingdom maintains its positioq in regard to Article 15. In its view this article is
discriminatory in that it establishes a procedure for the receipt of petitions relating to
dependent territories while making no comparable provisions for States without such territo-
ries. Moreover, the article purports to establish a procedure applicable to the dependent
territories of States whether or not those States have become parties to the Convention.
On 29 January 1970 the Committee on the Elimination of Racial Discrimi-

nation adopted a Statement of its Responsibilities under Article 15. This
referred to such matters as territories to which the article applied and the
sources and channels of information and stated that, in expressing its opin-
ions and recommendations to the United Nations bodies concerned, it would
endeavour to avoid, as far as possible, duplicating the work of other compe-
tent bodies of the United Nations.38
Consideration of copies of petitions and reports and expressions of opinion

and recommendations thereon by the Committee
The Committee has so far received copies of reports from the Trusteeship
Council and the Special Committee of Twenty-Four; it has also received
certain copies of petitions from the Special Committee but none so far from
the Trusteeship Council.
The present procedure followed for considering this material is for the
Chairman to appoint three working groups relating to various groups of
territories. The working groups hold meetings and consultations in private
and submit draft reports for examination in public meetings by the Commit-
tee as a whole.
In lieu of summaries of petitions and reports received by the Committee
from United Nations bodies, the Committee has listed the documents re-
ceived in annexes to its annual reports to the General Assembly. The Com-
mittee has also adopted decisions addressed directly, or through the General
Assembly, to the bodies of the United Nations concerned, to obtain as full
information as possible pertaining to racial discrimination and the achieve-
ment of the principles and objectives of the Convention in all the territories.
However, it may be noted that the Committee has consistently complained,
in its annual reports, of the inadequacy of the information available to it in
accordance with Article 15 and of the irrelevance of much of the material

forwarded to it.3Y
The expression of opinions and recommendations agreed upon by the Com-
mittee are included not in separate texts but in one integrated text and
submitted to the General Assembly and the United Nations bodies concerned
in the annual reports of the Committee to the Assembly. The opinions and
recommendations have been adopted without a formal vote, and sometimes
reservations made by members have been mentioned. These texts of the
Committee are wide ranging and an analysis of the opinions and recommen-
dations they contain cannot be attempted here.
Action by the General Assembly

Actions by the General Assembly on the Committees texts have been
either to note them generally as part of noting the report of the Committee as
a whole, to commend its efforts to obtain the required information or to
endorse them specifically, and to draw the attention of the United Nations
bodies concerned to them. (See, for example, General Assembly res. 35/40
(1980).
Actions taken by the United Nations bodies concerned

As regards the United Nations bodies concerned, they have decided to
take note of the Committees recommendations and sometimes to adopt spe-
cific decisions; they have also reported to the General Assembly on their
actions as requested by the Assembly in its Resolution 2106 B (XX).
Both the Trusteeship Council and the Special Committee of Twenty-Four
have directed the attention of the administering Powers to the requests of
the Committee and, where appropriate, requested the Secretary-General to
include the required information in the working papers prepared on the
various territories.4
vi) USE OFOTH~MA~~~RYORPROCED~RES~~ IMPLEMENTATION

(ARTICLE 16)
The provisions of the Convention concerning the settlement of disputes or

complaints are to be applied without prejudice to other procedures for set-
tling disputes or complaints in the field of discrimination laid down in the
constituent instruments of, or in conventions adopted by, the United Nations
and the specialized agencies. Nor should they prevent the States parties from
having recourse to other procedures for settling a dispute in accordance with
general or special international agreements in force between them.
It could be that the purpose of Article 16 is to safeguard other procedures
containing elements of racial discrimination going beyond its own definition
and other provisions in the Convention.
There was nothing said in the General Assembly to elucidate the full scope
328 Kamleshwar Das
of Article 16 and especially whether it covered individual communications.

However, Italy, Norway and Sweden, in making a declaration under Article
14(l), have made the reservation that the Committee shall not consider any
communication from an individual or a group of individuals unless the Com-
mittee has ascertained that the same matter is not being examined or has not
been examined under another procedure of international investigation or
settlement.
In the second year of its existence, the Committee received communications

from the IL0 and Unesco in which those organizations expressed a desire to
co-ordinate their work as closely as possible with that of the Committee with
regard to the implementation of the Convention in their respective spheres of
competence. After considerable debate the Committee decided to authorize
the Secretary-General to distribute written statements, relating to Article 9
and submitted by those organizations to the members of the Committee, and
to invite representatives of those organizations to attend the meetings of the
Committee, thus withholding consent to the idea of participation by those
representatives in the Committees consideration of reports from States par-
ties under Article 9 as well as the idea of distributing to the Committee as
such written statements from those organizations relevant to Article 9.41
Since those debates, Committee members have asked questions of the repre-
sentatives of both IL0 and Unesco and have heard statements by those
representatives on matters of common concern.
At the Committees 19th session, held in 1979 at Unesco Headquarters in
Paris, the Committee undertook, in the context of its consideration of the
implementation of Article 7 of the Convention (relating to measures in the
fields of teaching, education, culture and information), a thorough discussion
of the Unesco Declaration on Race and Racial Prejudice and the resolution on
its implementation adopted by the Unesco General Conference in 1978.4 In
its decision (2(X1X)) the Committee invited Unesco to transmit to it sugges-
tions for the preparation of general guidelines with a view to assisting States
parties to implement Article 7. In 1980, the Committee discussed a Unesco
document submitted to it in accordance with its decision.49
viii) JURISDICTION OF THE INTERNATI~NALCOURTOFJUSTICE(ARTICLE 22)
Any dispute between two or more States parties with respect to the in-
terpretation or application of the Convention, which is not settled by negotia-
tion or by the procedures expressly provided in the Convention, at the re-
quest of any of the parties to the dispute, is to be referred to the International
Court of Justice for decision, unless the disputants agree to another mode of
settlement.
An amendment to make recourse to the Court subject to the agreement of

all parties to a dispute was rejected, though it was contended that this was in
line with current practice. Nevertheless, some 24 reservations to the article
were made, and they were not usually objected to under Article 20 of the
Convention.
ix) ANNUALREP~RT~FTHE~~MMITTEEON ITSA~TIVITIESTOTHEGENERAL

ASSEMBLY(ARTICLESS, 14 AND 15)
Article 9 requires the Committee to submit annually to the General Assem-

bly a report on its activities. Suggestions and recommendations of the Com-
mittee based on its examination of the reports and information from States
parties under the same article are also to be reported to the General Assem-
bly with comments of States parties on them, if any. These comments, as
mentioned earlier, have so far been included in the annual reports of the
Committee, but they need not be. The annual report is to include a summary
of communications from individuals or groups of individuals considered by
the Committee under Article 14 (not yet in force) and, where appropriate, a
summary of the explanations and statements of the States parties concerned
and of its own suggestions and recommendations. Also to be included in the
annual report is a summary of the copies of petitions and reports from United
Nations bodies received under Article 15 of the Convention concerning Trust,
Non-Self-Governing and other Territories, to which General Assembly Reso-
lution 1514 (XV) applies, and the expression of opinions and recommenda-
tions of the Committee relating to the said petitions and reports. Moreover,
the annual report concerned with activities of the Committee is likely to
include some information on any inter-State communication (there have been
none so far) and the role of the Committee and, if it is set up, of any ad hoc
conciliation commission in regard to it.
The Committee had submitted twelve annual reports to the General As-
sembly as of January 1982 (see bibliography). The reports so far submitted
have been discussed in the Third Committee of the Assembly, usually in
general terms, though from 1973 onwards, at the behest of the Committee,44
the Assembly has discussed the report separately from other sub-items relat-
ing to elimination of racial discrimination. Some of the specific actions taken
by the General Assembly have been mentioned earlier, in particular in rela-
tion to consideration by the Committee of reports under Article 9 and of
material under Article 15. The General Assembly has taken note of the
reports of the Committee, usually with appreciation.
The Committee itself takes the deliberations and decisions of the General
Assembly seriously and discusses them annually. In its Decision 3 (XII) of
197545 it recommended to the Assembly that a member appointed by the
Committee should be invited to participate in meetings of the Third Commit-
330 Kamleshwar Das
tee, at which the annual report of the Committee is considered. However, the
Assembly took no action in response to the recommendation.
Moreover, both the Assembly and the Committee are co-operating in the
programme relating to the Decade for Action to Combat Racism and Racial
Discrimination (1973-1983). Much of that programme derives directly from
the provisions, purposes and objectives of the Convention.
At each of its sessions since 1974 the Decade has been an item on the
Committees agenda. Attaching great importance to the programme for the
Decade and with the aim of implementing the purposes of the Convention,
the Committee indicated ways of co-operating in the programme and sug-
gested or recommended certain essential goals to be achieved under it. In
1975, the General Assembly endorsed the Committees decision to make its
contribution to the total and unconditional elimination of racism and racial
discrimination, especially by concentrating its efforts under Articles 3, 9 and
15 of the Convention, by proposing recommendations with regard to the most
flagrant and large-scale manifestations of racial discrimination, particularly
in areas still under domination of racist or colonial regimes and foreign occu-
pation. In making an urgent appeal to States which are not yet parties to
become so, the Assembly asked them, pending such action, to be guided by
the basic provisions of the Convention in their internal and foreign policies.
Specifically, the Assembly has reaffirmed its conviction that the acceptance
and implementation of the Convention on a universal basis are necessary for
the realization of the objectives of the Decade.4 In 1979, the General Assem-
bly (res. 34/24) invited the Committee to monitor the implementation of the
provisions of Articles 4 and 7 of the Convention in order to prevent any
incitement to racism and racial discrimination and to promote understanding,
tolerance and friendship among nations and racial or ethnic group~.~~
(b). International Covenants on Human Rights and Optional Protocol to

the International Covenant on Civil and Political Rights
Institutions and procedures for implementation became a matter of serious
concern from the very beginning of the discussion on the preparation of an
International Bill of Rights4
At first, the machinery discussed mainly related to civil and political rights.
A great variety of schemes was presented, ranging from giving special respon-
sibilities to United Nations organs (those proposed included the General
Assembly, the Security Council, the Economic and Social Council, the Inter-
national Court of Justice and the Commission on Human Rights) to setting up
special permanent or ad hoc bodies of governmental or expert representa-
tion, to establishing an International Court of Human Rights or a High
Commissioner (Attorney General) for Human Rights, to not including any
international measures at all. As far as economic, social and cultural rights
are concerned, the machinery for their implementation which was agreed to
by the Commission was left largely unchanged by the General Assembly. The
same fate did not await the Commission on Human Rights proposals on civil
and political rights.
The General Assemblys Third Committee held a general discussion on
measures of implementation of the Covenants in 1963, and detailed discussion
and adoption of such measures took place at its 1966 session. As adopted, the
measures of implementation of the Covenant on Economic, Social and Cul-
tural Rights consist in a system of reporting by States parties and specialized
agencies concerned to the Economic and Social Council, which may transmit
them to the Commission on Human Rights. The Council considers them in
collaboration with the specialized agencies and reports to the General As-
sembly. States parties agree that international action for the progressive
achievement of the rights includes all the methods available to the United
Nations and the specialized agencies, particularly as regards technical assis-
tance. The Covenant on Civil and Political Rights also provides a reporting
system as the primary and only obligatory method of international implemen-
tation, though the system differs from the other Covenant and the reports
are to be submitted to a Human Rights Committee of experts. In addition to
reporting, the Covenant provides for an optional system of State to State
communication on the application of the provisions of the Covenant leading to
possible conciliation by ad hoc commissions, appointed with their consent.
The task of the Human Rights Committee, as regards the reports, is to
transmit its reports and general comments to States parties and to the Coun-
cil. Under the Optional Protocol to the Covenant on Civil and Political Rights,
those who become parties to it (provided they are also parties to the Cove-
nant) subscribe to the Human Rights Committee considering an individuals
communication claiming violation of any of his rights enumerated in the Cov-
enant, under certain conditions, and the Committee forwards its views to the
State party concerned and to the individual. The Committee submits an
annual report on its activities under the Covenant and the Optional Protocol
to the General Assembly through the Economic and Social Council. There are
no provisions involving the International Court of Justice. The Covenants
and the Optional Protocol came into effect in 1976 and the description of the
institutions and procedures which follows can hardly indicate the practice
relating to them.
i) INTERNATIONALCOVENANTONECON~MI~,~~~IALANDCULTURALRIGHTS
The Reporting System
Purpose of the reports of States parties, their destination and frequency

The purpose of the reports from States parties is to ascertain the measures
which they have adopted and the progress made in achieving the observance
of the rights recognized in the Covenant.48a Reports may indicate factors and
difficulties affecting the degree of fulfillment of obligations under the Cove-
332 Kamleshwar Das
nant.4g Where relevant information has previously been furnished to the

United Nations or to any specialized agency by any State party, reproduction
of that information is not necessary and a precise reference to it suffices.50 All
reports are to be submitted to the Secretary-General who is to transmit them
to the Economic and Social Council.
The reports of States parties are to be submitted in stages, in accordance
with a programme to be established by the Economic and Social Council
within one year of the entry into force of the Covenant, after consultations
with the States parties and the specialized agencies concerned.5 Under Council
resolution 1988 (LX) (1976) States parties are to furnish biennially their
reports beginning September 1977: first stage, rights covered by Articles 6
to 9; second stage, rights covered by Article 10 to 12; third stage, rights
covered by Articles 13 to 15. States parties were requested in reporting to
give full attention to the principles contained in Articles 1 to 5 of the Cove-
nant and to indicate factors and difficulties affecting the degree of fulfillment
of their obligations when necessary.
Role of the specialixed agencies and their reports

Many of the economic, social and cultural rights in the Covenants fall
within the purview of the specialized agencies such as the ILO, Unesco,
WHO and FAO. All of them have their own forms of reporting and other
methods of ascertaining the achievement of the objectives of their organiza-
tions or conventions and recommendations concluded under their auspices.53
The role assigned to these agencies under the Covenant is not what many of
them had desired during the preparation of the Covenant, and the exact
nature of it will become evident only as the decisions of the Council come into
play.
The specialized agencies receive from the Secretary-General copies of the
reports or any relevant parts therefrom from States parties which are also
members of the agencies insofar as these reports or parts therefrom relate to
any matters which fall within the responsibilities of the agencies in accordance
with their constitutional instruments.54 The Secretary-General was asked to
do this by the Council in paragraph 5 of its Resolution 1988 (LX) (1976).
The Council also makes arrangements with the specialized agencies in
respect of their reporting to it on the progress made in achieving the obser-
vance of the provisions of the Covenant, falling within the scope of their
activities. These reports may include particulars of decisions and recommen-
dations on their implementation by the competent organs.55
Guidelines for reports

In accordance with paragraph 8 of Council resolution 1988(LX) the Secretary-
General, in co-operation with the specialized agencies concerned, drew up
general guidelines for the reports to be submitted by States parties and by
specialized agencies. 56The Council also decided that States parties submitting
reports under the Covenant need not submit reports on similar questions
under the general reporting procedure established by Council Res. 1074 C
(XxX1X)(1965). The Council later (decision 197819)requested the Secretary-
General to prepare an analytical summary, based on the general guidelines, of
the reports submitted by States parties to facilitate the work of a sessional
working group on implementation of the Covenant established by the Council.
Action on reports and reports by the Economic and Social Council

All reports from States parties are submitted to the Secretary-General, who
transmits copies to the Economic and Social Council for consideration.57 The
Council may transmit them, as well as the reports from specialized agencies, to
the Commission on Human Rights for study and general recommendation or,
as appropriate, for information. States parties and specialized agencies con-
cerned may submit comments to the Council on any general recommendation
made by the Commission or reference to such general recommendation in any
report of the Commission or any documentation referred to therein.5s
The Council may submit from time to time to the General Assembly reports
with recommendations of a general nature and a summary of the information
received from the States parties and the specialized agencies on the measures
taken and the progress made in achieving general observance of the rights
recognized in the Covenant. The Council may also bring to the attention of
other organs of the United Nations, their subsidiary organs and specialized
agencies concerned with furnishing technical assistance any matters arising
out of the reports which may assist such bodies in deciding, each within its field
of competence, on the advisability of international measures likely to contrib-
ute to the effective progressive implementation of the Covenant. States
parties agree that international action for the achievement of the rights,
recognized in the Covenant, includes such methods as the conclusion of con-
ventions, the adoption of recommendations, the furnishing of technical assis-
tance and the holding of regional meetings and technical meetings for the
purpose of consultation and study organized in conjunction with the Govern-
ments concerned.61
Both under the draft of the Commission on Human Rights and the provisions
described above, the task of considering the reports and taking action thereon
is entrusted to the Economic and Social Council, assisted by other United
Nations bodies, and acting in co-operation with the specialized agencies. The
question arose in the General Assembly as to whether the system of reporting
would not function better if entrusted to a body of experts based, in varying
degrees, on Articles 8 and 9 of the Convention on the Elimination of All Forms
of Racial Discrimination. Two sets of proposals were submitted, but opposition
to them led to their withdrawal.
In fact, the Council decided by its Resolution 1988 (LX) of 11 May 1976 that
a sessional working group of the Council, with appropriate representation of
States and with due regard to equitable geographical distribution, should be
334 Kamleshwar Das
established by it, to assist whenever reports are due for consideration. Rep-
resentatives of specialized agencies concerned may take part in the proceed-
ings of the working group when matters falling within their field of competence
are considered. An appeal has been addressed to States to include, if possi-
ble, in their delegations to the relevant sessions of the Council, members
competent in the subject matters to be considered. The procedures initiated
by the Council in 1976 and 1978 (res. 1988 (LX) and decision 1978110)led to
the first session of the sessional working group of the Council in April-May
1979 after protracted consultations and negotiations concerning its composi-
tion. That session was confined mainly to formulating the groups methods of
work, which were approved by the Council (E/1979/64 and res. 1979143).At its
second session in 1980 the group did consider some of the reports of the
States parties concerning Articles 6 to 9 of the Covenant, but the Council,
after noting that the group had encountered certain difficulties in discharging
its responsibilities, decided to review early in 1981 its composition, organiza-
tion and administrative arrangements, and solicited through the Secretary-
General the views of members of the Council and all States parties on these
arrangements (E/1980/60 and res. 1980124).Thus, the implementation measures
provided for the Covenant may be said to be still at a preliminary stage.
The report of the Third Committee mentions that it was generally agreed
that the Councils own reports and recommendations to the Assembly should
be of a general character in more than one sense: they should, if necessary,
deal with the application everywhere of all the rights recognized in the Cove-
nant, but they should not refer to any particular State. One opinion was,
however, that Article 62 of the Charter seemed to place no such restriction
on the competence of the Council to make recommendations.6 It was also
remarked that Article 24 could not impair the provisions of the Charter.
Relationship between the United Nations and the specialixed agencies;

responsibilities of their organs
According to Article 24, nothing in the Covenant is to be interpreted as
impairing the provisions of the Charter and of the constitutions of the special-
ized agencies, which define the respective responsibilities of the various or-
gans of the United Nations and of the specialized agencies in regard to the
matters dealt with in the Covenant.
ii) INTERNATIONAL COVENANTON CIVILANDPOLITICAL RIGHTS
The Human Rights Committeeti4
Composition and election of the ,members of the Human Rights Committee

and their emoluments
A Human Rights Committee (hereafter referred to as the Committee) is
established to carry out the functions provided for it in the Covenant.65 The
Committee consists of eighteen members, nationals of the States parties, of

high moral character and recognized competence in the field of human rights,
consideration being given to the usefulness of the participation of some per-
sons having legal experience, who are to serve in their personal capacity6
and who, before taking up their duties, must make solemn declarations in
open Committee that they will perform their functions impartially and
conscientiously.7
The members of the Committee are elected by secret ballot by the States
parties from among their nationals; each State party may nominate not more
than two persons, who are eligible for renomination for later elections.s In
the election by the States parties consideration is given to equitable geo-
graphical distribution of membership and to the representation of the dif-
ferent forms of civilization and of the principal legal systems; no more than
one national of the same State may be elected to the Committee.
Members serve for four years and are eligible for re-election if re-nominated.
There is an election for half the membership every two years.70 The geographi-
cal distribution of the membership of the Committee for 1981-82 is 5 from
Western European and other countries, 4 from Eastern Europe and 3 each
from Africa, Asia and Latin America. Members receive emoluments from
United Nations resources on such terms and conditions as the Assembly may
decide, having regard to the importance of the Committees responsibilities.71
Vacancies are filled by elections by States parties, in the same way as for
the ordinary elections; a member elected to fill a vacancy holds office for the
remainder of the term of office of the member who vacated the seat.72 A
vacancy arises in the event of the death or the resignation of a member of the
Committee, or when, in the unanimous opinion of the other members, a
member has ceased to carry out his functions for any cause other than ab-
sence of a temporary character.7
Although the Covenant stipulates that members of the Committee must be
nationals of States parties, nationals of States parties which have not ac-
cepted the provisions of optional Article 41 on inter-State communications or
the provisions of the Optional Protocol on individual communications are not
precluded from acting under Article 41 or the Protocol, though only nationals
of the States parties accepting the optional provision of Article 41 can be
members of an ad hoc conciliation commission established under Article 42.
Meetings, officers and rules of procedure of the Committee and its secretariat
(Articles 36, 37 and 39)
Most of the Committees meetings have been held in Geneva. The Commit-
tee elects its officers for a term of two years; they may be re-elected. It was
to establish its own rules of procedure, but these rules were to provide that
twelve members should constitute a quorum and that decisions of the Com-
mittee were to be made by a majority vote of the members present. The
Committee has adopted provisional rules of procedure based upon those of
336 Kamleshwar Das
the United Nations organs and of the Committee on the Elimination of Racial
Discrimination, as well as certain rules relating to reports from States par-
ties (including participation of representatives of States parties in the Com-
mittee when their reports are considered), rules relating to communications
received from States parties under Article 41 of the Covenant, and rules
concerning communications received under the Optional Protocol, bearing in
mind the relevant provisions of the Covenant.74
The Secretary-General is to provide the necessary staff and facilities for
the effective performance of the functions of the Committee.7
The reporting system (Article 40)
Purpose of reports
From the discussions in both the Commission and the Third Committee of
the General Assembly, it appears that the aim is, by and large, to impose
obligations under the Covenant of an immediate and not an indefinite nature.
In line with this, the proposal for States parties to submit to the Committee
reports on the measures they have adopted and the progress made in giving
effect to the rights recognized in the Covenant was changed to measures
they have adopted which give effect to the rights recognized in the Cove-
nant and, in addition, on the progress made in the enjoyment of those
rights. Reports are to indicate also the factors and difficulties, if any, affect-
ing the implementation of the Covenant.?
Frequency and destination of reports

Reports are to be submitted within one year of the entry into force of the
Covenant for the State party concerned and thereafter whenever the Com-
mittee so requests. 77All reports are to be submitted to the Secretary-General
who is to transmit them to the Committee for consideration.7x The Secretary-
General may, after consultation with the Committee, transmit to the special-
ized agencies concerned copies of such parts of the reports as may fall within
their field of competence. 7g The question of co-operation between the Com-
mittee and the agencies has been the subject of considerable discussion by
the Committee. In 1978, it decided that the specialized agencies should not be
invited to submit any comments on the reports of States parties since the
Covenant contained no provision to that effect.80 While reiterating that posi-
tion in 1980 the Committee also stated that it was convinced of the need for
all possible information from the specialized agencies that was relevant to its
work, in a relationship of mutual co-operation with those agencies; accord-
ingly and to that end, the Committee agreed that information, mainly on the
specialized agencies interpretation of, and practice in relation to, the corres-
ponding provisions of their instruments, should be made available to mem-
bers of the Committee on a regular basis, and that information of any other
kind may be made available to them on request during meetings of the
Committee which were attended by representatives of the specialized

agencies.sl
Action on reports
The Committee is to study the reports submitted by the States parties and
to transmit its reports and such general comments as it may consider appro-
priate to the States parties.82 The States parties may submit to the Commit-
tee observations on any comments that may be made by it.: The Committee
may also transmit to the Economic and Social Council its general comments
along with copies of the reports it has received from States parties.84 The
Committee is further required to submit to the General Assembly, through
the Council, an annual report on its activities.x5
As of the end of 1980 the Committee had not forwarded any general
comments to States parties whose reports it had examined, nor had any
such comments been contained in its annual reports to the General Assembly.
However, the annual reports do contain descriptions of the Committees
consideration of each States report including the questions posed by mem-
bers and the additional information requested by them. At its eleventh ses-
sion, in 1980, the Committee adopted a ten-point consensus relating to its
subsequent examination of States parties reports (see CCPRICISR.260 (1980)).
It decided that it would begin to formulate general comments based on the
consideration of reports for transmission to the States parties. In formulating
general comments the Committee will be guided by the following principles:
they should be addressed to the States parties, in conformity with article 40,
paragraph 4 of the Covenant; they should promote co-operation between
States parties in the implementation of the Covenant; they should summarize
experience the Committee has gained in considering States reports; they
should draw the attention of States parties to matters relating to the im-
provement of the reporting procedure and the implementation of the Cove-
nant; and, they should stimulate activities of States parties and international
organizations in the promotion and protection of human rights.
The general comments could be related, inter alia, to the following sub-
jects: the implementation of the obligation to submit reports under article 40
of the Covenant; the implementation of the obligation to guarantee the rights
set forth in the Covenant; questions related to the application and the content
of individual articles of the Covenant; suggestions concerning the co-operation
between States parties in applying and developing the provisions of the
Covenant.
The Committee also confirmed its aim of engaging in a constructive dia-
logue with each reporting State, and for this purpose it established a three or
four year periodicity for subsequent States reports under article 40.
It also decided to develop guidelines for these new reports, the contents of
which should concentrate on: the progress made in the meantime; changes
made on laws and practices involving the Covenant; difficulties in the imple-
338 Kamleshwar Das
mentation of the Covenant; the completion of the initial report, taking into
account the questions raised in the Committee; additional information as to
questions not answered or not fully answered; information taking into ac-
count general comments that the Committee may have made in the mean-
time; and action taken as a result of the experience gained in co-operation
with the Committee.
For their general information and to provide more active assistance to
States parties when drawing up both initial and subsequent reports, it was
considered useful as a first step to establish a digest or list of questions most
frequently asked by members of the Committee, relating to the various
subjects under the Covenant. Such a digest or list should be drawn up, and be
up-dated from time to time, by the Secretariat on the basis of the summary
records of Committee meetings and should be circulated to States parties for
their information only after approval by the Committee.
Prior to the meetings with representatives of the reporting States, at which
the second report will be considered, a working group of three members the
Committee will meet to review the information so far received by the Com-
mittee in order to identify those matters which it would seem most helpful to
discuss with the representatives of the reporting State. This will be without
prejudice to any member of the Committee raising any other matter which
appears to him to be important.
The Committee will request the Secretariat to establish after each exami-
nation of a State report an analysis of the study of its report. This analysis
should set out systematically both the questions asked and the responses
given with precise references to the domestic legal sources quoting the main
ones.
Optional provisions concerning good offices and conciliation procedures re-

sulting from initiation of inter-State communications (Articles 41-42)
Optional acceptance of provisions concerning inter-State communications

and making available the good offices of the Human Rights Committee
Optional acceptance of the provisions

A State party to the Covenant may at any time declare that it recognizes
the competence of the Committee to receive and consider communications to
the effect that a State party claims. that another State party is not fulfilling
its obligations under the Covenant. Communications are receivable only if
submitted by a State party, which has made a declaration recognizing, in
regard to itself, the competence of the Committee and not if it concerns a
State party which has not made such a declaration. These declarations are to
be deposited with the Secretary-General and may be withdrawn at any time
by notification to him, but this will not affect continuance of consideration of a
matter which has been the subject of an initial communication by a State
party. With this exception, no further communication by any State party is to

be received after the notification of withdrawal of the declaration has been
received by the Secretary-General, unless the State party concerned has
made a new declaration.
Of the 62 States parties to the Covenant as of 1 January 1982, fourteen had
made the declaration under Article 41. The provisions of that Article entered
into force on 28 March 1979, but as of January 1982 no State had invoked the
procedure.
Initial communication between States parties

If a State party considers that another State party is not giving effect to
the provisions of the Covenant, it may, by written communication, bring the
matter to the attention of that State party. Within three months after the
receipt of the communication, the receiving State is to afford the State which
sent the communication an explanation or any other statement in writing
clarifying the matter, which is to include, to the extent possible and perti-
nent, reference to domestic procedures and remedies taken, pending or avail-
able in the matter.X7
Submission of a matter to the Human Rights Committee and its functions

If the matter is not adjusted to the satisfaction of both States parties
within six months after the receipt by the receiving State of the initial communi-
cation, either State has the right to refer the matter to the Committee, by
notice given to the Committee and to the other State.
The Committee deals with a matter only after it has ascertained that all
available domestic remedies have been invoked and exhausted in the matter
in conformity with the generally recognized principles of international law.
This is not the rule when the application of the remedies is unreasonably
prolonged.
The Committee makes available its good offices to the States parties con-
cerned with a view to a friendly solution of the matter on the basis of respect
for human rights and fundamental freedoms as recognized in the Covenant.
The Committee holds closed meetings when examining the matter. It may
call upon States parties concerned to supply any relevant information. Such
States have the right also to be represented when the matter is being consid-
ered in the Committee and to make submissions orally and/or in writing.
Action by the Human Rights Committee

Within twelve months after the date of being seized with the matter, the
Committee submits a report. If a friendly solution of the matter on the basis
of respect for human rights and fundamental freedoms as recognized in the
Covenant is reached, the Committee confines its report to a brief statement
of the facts and of the solution reached. s8 If such a solution is not reached, the
Committee confines its report to a brief statement of the facts; the written
340 Kamleshwar Das
submissions and record of the oral submissions made by the States parties
concerned are attached to the report. * In every matter the report is com-
municated to the States parties concerned. The Committee has laid down the
procedure for the consideration of communications received under Article 41
of the Covenant (A/34/40, Chapter III and annex III).
Possible further action on inter-State communications by ad hoc conciliation

commissions
Establishment and composition of an ad hoc commission

If the Committee is not able to resolve a matter referred to it under Article
41 to the satisfaction of the States parties concerned it has the option, subject
to the prior consent of the States parties concerned, to appoint an ad hoc
conciliation commission (hereinafter referred to as the Commission).go The
good offices of the Commission are made available to the States parties
concerned with a view to an amicable solution of the matter on the basis of
respect for the Covenant.
Any such Commission consists of live persons acceptable to the States
parties concerned. If the States parties fail to reach agreement within three
months on all or part of the composition of the Commission, its members
concerning whom no agreement has been reached are elected by secret ballot
by a two-thirds majority vote of the Committee from among its members.
The members serve in their personal capacity; they cannot be nationals of the
States parties concerned, or of a State not party to the Covenant, or of a
State party which has not made a declaration under Article 41.g2 It is likely
that in practice the Committee will rely heavily upon consent of the States
concerned to the membership until at least there are large numbers of decla-
rations under Article 41.
Officers, wzeeting, secretamat and rules of procedure of a cornrnission

The Commission elects its own Chairman and adopts its own rules of pro-
cedure. Its meetings are normally held at Headquarters or in Geneva. How-
ever, they may be held at such other convenient places as the Commission
may determine in consultation with the Secretary-General and the States
parties concerned. The Secretariat provided by the United Nations for the
Committee also serves the Commission.
Consideration of a matter by a commission

The Covenant provides for the Commission to consider the matter fully.%
In considering the matter, the information received and collated by the Com-
mittee is made available to the Commission and the Commission may call
upon the States parties concerned to supply any other relevant information.g4
Unlike Article 41, there is no provision entitling the States parties concerned
to be represented when the matter is being considered in the Commission
and to make submissions orally and/or in writing.g5 It is hardly likely, how-

ever, that the Commission, which will have come into being with the prior
consent of the States parties concerned, will not allow for such participation
and submissions, especially as it is specifically provided that, when a solution
is not reached, the Commissions report is to contain the written submissions
and a record of the oral submissions made by the States parties concerned.g
Report of an ad hoc conciliation commission

When the Commission has fully considered the matter, but in any event
not later than twelve months after having been seized of it, it submits to the
Chairman of the Committee a report for communication to the States parties
concerned. If the Commission is unable to complete the consideration of the
matter within twelve months, it confines its report to a brief statement of the
status of its consideration of the matter.
If an amicable solution to the matter on the basis of respect for human
rights as recognized in the Covenant is reached, the Commission confines its
report to a brief statement of the facts and of the solution reached.
If an amicable solution is not reached, the Commissions report presents its
findings on all questions of fact relevant to the issues between the States parties
concerned, and its views on the possibilities of an amicable solution of the mat-
ter. The report also contains the written submissions and a record of the oral
submissions made by the States parties concerned.? The States parties, within
three months of the receipt of the report, notify the Chairman of the Commit-
tee whether or not they accept the contents of the report of the Commission.
The initial proposal incorporated similar provisions to those of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination
according to which the Commission would submit a report containing its
findings on all questions of fact relevant to the issues between the parties and
such recommendations as it may consider proper for the amicable solution of
the matter.gs Changes were introduced, in particular to insert the words and
containing its views on the possibilities of an amicable solution to the mat-
ter, instead of referring to recommendations in case of failure to reach an
amicable solution, and the replacement of acceptance of recommendations
contained in the report of the Commission by the States parties concerned by
acceptance of the contents of the report of the Commission. These provis-
ions of paragraph 7 of Article 42 were adopted by narrow majorities. Ques-
tions may be raised as to whether the term contestations in French is the
same as views in English (as well as observaciones in Spanish), which
was the contention of the representative of France, the mover of the change.
Privileges and immunities of the members of the Human Rights Committee

and of an ad hoc conciliation commission
Unlike the International Convention on the Elimination of All Forms of
Racial Discrimination, the Covenant provides that members of the Commit-
342 Kamleshwar Das
tee and of an ad hoc conciliation commission which may be appointed under

the Covenant are entitled to the facilities, privileges and immunities of ex-
perts on mission for the United Nations as laid down in the relevant sections
of the Convention on the Privileges and Immunities of the United Nations.
Relations and division of responsibilities between the United Nations and

the specialixed agencies; relationship between the implementation provisions
of the Covenant and other procedures prescmbed in the field of human rights
In the first place, the Covenant establishes as a general rule applying to
the whole of it in Article 46 that nothing in the Covenant is to be interpreted
as impairing the provisions of the Charter and of the Constitutions of the
specialized agencies which define the respective responsibilities of the vari-
ous organs of the United Nations and of the specialized agencies in regard to
the matters dealt with in the Covenant. The same provision is included in
Article 23 of the Covenant on Economic, Social and Cultural Rights.
In the second place, Article 44 provides that the provisions for the imple-
mentation of the Covenant are to apply without prejudice to the procedures
prescribed in the field of human rights by or under the constituent instru-
ments and the conventions of the United Nations and of the specialized
agencies and is not to prevent the States parties to the Covenant from having
recourse to other procedures for settling a dispute in accordance with general
or special agreements in force between them.
Article 44 was adopted after prolonged discussion on various texts and
suggestions, and after the latter part of it was voted on separately. Particu-
lar objection was taken to a proposal which included a paragraph providing
that the Human Rights Committee was to take no action under Articles 41
and 42 of the Covenant with regard to any matter in respect of which any of
the procedures referred to had been invoked. It is impossible to give any
exact indication of the scope of Article 44 which might not be challenged on
some ground or other.
Provisions on implementation and the International Court of Justice

The proposed articles of the Covenant as drafted by the Commission on
Human Rights concerning the Court were deleted. Under the first of the
articles the Commission had proposed that States parties would agree that
any State party having been complained of or having lodged a complaint
might, if no solution had been reached within the terms of what is now Article
41, para. 1 (b) (ii) and Article 42, para. 7 (c) and (d), bring the case before the
Court, after the reports provided for in those articles had been drawn up.
The second provided that the provisions of the Covenant were not to prevent
States parties from submitting to the Court any dispute arising out of the
interpretation or application of the Covenant in a matter within the compe-
tence of the Committee. The third would have provided that the Committee
might recommend to the Economic and Social Council that the Council re-
quest the Court to give an advisory opinion on any legal question connected
with a matter of which the Committee was seized.
Besides these provisions, the Commission text also envisaged the election
of the Human Rights Committee by the International Court of Justice. It
may be contended that the attitude in the General Assembly towards the
Court was affected by the judgment of 18 July 1966 of the Court on South
West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Sec-
ond Phase,gY even if some sponsors of deletions of the Commissions texts
expressed other views. However, it is well to recall certain observations
made in the Third Committee to the effect that, even without such specific
provisions as those mentioned above, a matter might be brought before the
Court if States parties concerned agreed to do so, that recourse to the Court
might be possible under the provisions of Article 44 of the Covenant, and the
Charter provisions empowering the General Assembly (to which the Human
Rights Committee is to submit annual reports) to seek advisory opinions
from the Court would remain unimpaired.
Annual report by the Human Rights Committee to the General Assembly

through the Economic and Social Council
An annual report on its activities is submitted by the Human Rights Com-
mittee to the General Assembly through the Economic and Social Council.
Under the Optional Protocol the Committee includes in its annual report a
summary of its activities under that Protocol. loa
Up to 1982 the Committee has submitted five annual reports. So far, the
Council has transmitted these reports to the Assembly without discussing
their substance. The Committee had expressed the wish that its Chairman be
invited to present its annual report to the Assembly (A/32/44, para. 185) but
the Assembly took no action on the matter. The resolutions adopted by the
Assembly have been similar in content with suitable variations reflecting the
contents of the Committees reports. lo1
iii) OPTIONAL~ROT~~~L-~~THE COVENANTON ~IVILANDPO~TICAL RIGHTs~~~
All proposals made in the Commission on Human Rights concerning the

right of petition, including those in response to the General Assemblys re-
quest to draft provisions on it, were eitherrejected or withdrawn. In 1966,
the Assemblys Third Committee discussed an optional article for inclusion in
the Covenant on the right of individuals or groups to submit petitions but
rejected it. lo3 Thereupon an Optional Protocol on the subject was submitted
and adopted.lo4 The Covenant on Civil and Political Rights and the Optional
Protocol are separate instruments, but they are related since only parties to
the Covenant can become parties to the Protocol.
344 Kamleshwar Das
The Protocol came into force simultaneously with the Covenant and, as of 1
January 1982, there were 16 States parties to the Covenant which were also
parties to the Protocol. A State party may denounce the Protocol at any time
by written notification to the Secretary-General, the denunciation becoming
effective three months after the receipt of notification. The provisions of the
Protocol continue to apply to any communications submitted under it before
the effective date of the denunciation.
The body empowered to receive and act on communications under the
Protocol is the Human Rights Committee established under the Covenant.
Generally speaking, the various rules of procedure, methods of work and
other actions of the Committee made public (documentation and discussions
under the Protocol are confidential) appear to bear out what was said in the
Third Committee on behalf of the sponsors of the Protocol. When questions
were asked concerning the criteria which the Committee would apply in
deciding on conditions of admissibility of communications under Article 3 of
the Protocol, particularly those to be considered to be an abuse of the right
of submission of such communications, it was stated that in applying those
conditions the line of conduct which the Committee was to follow could not
be dictated; rules could be drawn up gradually on the basis of experience.05
The Committee has regarded the Protocols provisions as prescribing its
duties, but not all its functions which are subject to change as the Committee
gains more experience.
Sources of communications, their subject matter and admissibility (Articles

1 to 3)
The Committee is competent to receive communications from individuals

subject to the jurisdiction of a State party to the Protocol (but not a party to
the Covenant only) who claim to be victims of a violation by that State party
of any of the rights set forth in the Covenant and who have exhausted all
available domestic remedies. The Committee is to consider inadmissible any
communication which is anonymous, or which it considers to be an abuse of
the right of submission or to be incompatible with the provisions of the
Covenant.
In the Committees view, a communication should normally be submitted
by the alleged victim himself. This does not mean that he must sign the
communication himself, as he may also act through a duly appointed repre-
sentative. Where he is unable to submit the communication himself the Com-
mittee may decide to consider a communication submitted on his behalf pro-
vided a close link exists between the author(s) and the alleged victim (e.g. a
close family connection). lo6
Communications have been declared inadmissible if the alleged violations
took place prior to the date of entry into force of the Covenant and the
Protocol for the States parties concerned, but a reference to them may be
taken into account and considered if the author claims that they have contin-
ued after such date or that they have had effects which themselves constitute
a violation after that date.07
In order to assist the authors of communications, the Committee has au-
thorized the Secretariat to draw up and make use of guidelines and a model
form of communication as appropriate, explaining to the authors that the use
of the model form is not obligatory but merely intended as a guide to facilitate
their task. lox
Co,nsideration of admissibility and exhaustion of domestic remedies (Arti-

cles 1 to 5).
Under rule 84 of the provisional rules of procedure a member of the Com-
mittee shall not take part in the examination of a communication if he has any
personal interest in the case, or if he has participated in any capacity in the
making of any decision on the case covered by the communication: any ques-
tions arising on these are to be decided by the Committee.
According to rule 86, the Committee may, at any time prior to forwarding
its final views on a communication to a State party concerned, inform that
State of its views as to whether interim measures might be desirable to avoid
irreparable damage to the victim of the alleged violations, and indicate that
such views do not imply a determination on the merits. A working group of
the Committee, established under rule 89, makes recommendations to the
Committee regarding the fulfillment of the conditions of admissibility of com-
munications. It usually meets for one week immediately before each session
of the Committee and, if necessary, during the session.
The Committee may also decide to discontinue consideration of a communi-
cation, without taking a decision as to its admissibility. Rules are laid down
for assisting the Committee and its working group in carrying out these
functions. For instance, under rule 91, the working group may request the
State party concerned or the author of the communication to submit addi-
tional written information or observations relevant to the question of
admissibility.
As recalled earlier, a prior condition which applies under Article 2 of the
Protocol is the exhaustion of all available domestic remedies by the victim of
an alleged violation. The Committee itself, under Article 5 (2) of the Protocol
is not to consider any communication unless it has ascertained (a) that the
same matter is not being examined under another procedure of international
investigation or settlement, and (b) that the individual has exhausted all
available domestic remedies; neither of these is to be the rule where the
application of the remedies is unreasonably prolonged. lay
As regards Article 5 (2) (a) the Committee has recognized that cases con-
346 Kamleshwar Das
sidered by the Inter-American Commission on Human Rights constitute mat-

ters under examination in accordance with another procedure of international
investigation or settlement. On the other hand, the Committee has deter-
mined that the procedure set up under Economic and Social Council resolu-
tion 1503 (XLVIII) does not constitute a procedure under Article 5 (2) (a),
since it is concerned with the examination of situations which appear to
reveal a consistent pattern of gross violations of human rights and a situation
is not the same matter as an individual complaint. The Committee has also
determined that Article 5, (2) (a) can only relate to procedures implemented
by inter-State or intergovernmental organizations on the basis of inter-State
or intergovernmental agreements or arrangements. Procedures established
by non-governmental organizations, as for example, the procedure of the
Inter-Parliamentary Council of the Inter-Parliamentary Union, cannot, there-
fore, bar the Committee from considering communications submitted to it
under the Protocol.
The Committee has further concluded that a subsequent opening of a case
submitted by an unrelated third party under another procedure of interna-
tional investigation or settlement does not preclude the Committee from
considering a communication submitted under the Protocol. The Committee
has also determined that it is not precluded from considering a communica-
tion, although the same matter has been submitted under another procedure
of international investigation or settlement, if it has been withdrawn from or
is no longer being examined under the latter procedure at the time that the
Committee reaches a decision on the admissibility of the communication sub-
mitted to it.
Concerning Article 5 (2) (b), the Committee considers that its provisions
should be interpreted and applied in accordance with the generally accepted
principles of international law with regard to the exhaustion of domestic
remedies as applied in the field of human rights. If the State party concerned
disputes the contention of the author of a communication that all available
domestic remedies have been exhausted, the State party is required to give
details of the effective remedies available to the alleged victim in the particu-
lar circumstances of his case. In this connection, the Committee has deemed
insufficient a general description of the rights available to accused persons
under the law and a general description of the domestic remedies designed to
protect and safeguard these rights.l12
Final action by the Committee and report to the General Assembly (Articles
4 to 6).
According to rule 93 (1) of the provisional rules of procedure, as soon as
possible after the Committee has decided that a communication is admissible,
that decision and the text of relevant documents are communicated, through
the Secretary-General, to the State party concerned. The decision is simi-
larly communicated to the author of the communication. The State party
concerned is required, under Article 4, (2) of the Protocol, to submit to the

Committee, within six months, written explanations or statements clarifying
the matter and the remedy, if any, that may have been taken. The State
partys submission is forwarded to the author of the communication who may
within such time limits as established by the Committee, submit any addi-
tional written information or observations. According to rule 93 (4) the Com-
mittee may even at this stage review its decision that a communication is
admissible in the light of the submissions of the State party concerned.
Provided the communication is still admissible, the Committee considers
the communication in the light of all written information forwarded by both
parties. For this purpose, the working group has been assigned the task, in
accordance with rule 94 (l), to examine and make recommendations to the
Committee in formulating its final views under Article 5, (4) of the Protocol.
With regard to certain communications, the Committee has also assigned this
latter task to individual members of the Committee, acting as special rappor-
teurs for that purpose.
The final views of the Committee are forwarded to the State party con-
cerned under Article 5, (4) of the Protocol, and to the individual under rule 94
(2) of the provisional rules of procedure of the Committee. Any member of
the Committee may, under rule 94 (3), request that a summary of his individ-
ual opinion be appended to the views of the Committee when they are com-
municated to the individual and to the State party concerned.
The Committees 1980 report to the General Assembly indicated that 72
communications were placed before the Committee between its second ses-
sion (1977) and its tenth (1980). The communications related to Canada (17),
Colombia (4), Denmark (4), Finland (3), Iceland (l), Italy (l), Madagascar (l),
Mauritius (l), Norway (2), Sweden (l), Uruguay (36) and Zaire (1). Of those:
8 were declared suspended or discontinued; 17 were declared inadmissible;
12 were to be examined further, prior to a decision as to their admissibility;
and 27 were declared admissible for consideration on their merits. Consider-
ation of a total of six communications had been concluded by the adoption of
views under Article 5, paragraph 4 of the Protocol. These latter communica-
tions concerned Uruguay and the views on them were given in 1979 and 1980;
with one exception, the views referred to breaches of various provisions of
the Covenant. These views have been set out in some detail in the Commit-
tees annual reports to the General Assembly. 14
Relationship to procedures on petitions available to peoples concerning tern.-

tories to which the Declaration on the Granting of Independence to Colonial
Countries and Peoples applies
Pending the achievement of the objectives of the Declaration on the Grant-
ing of Independence to Colonial Countries and Peoples as set forth in General
Assembly Resolution 1514 (XV) of 14 December 1960, the provisions of the
Protocol are in no way to limit the right of petition granted to those people by
348 Kamleshwar Das
the Charter of the United Nations and other international conventions and
instruments under the United Nations and its specialized agencies.i This
provision was said to reaffirm, and to avoid overlapping or jurisdictional
problems, arising out of the petition rights relating to Trust Territories
under Article 87 (b) of the Charter, those provided for the Special Committee
of Twenty-Four established following General Assembly Resolution 1514 (XV),
as well as the Fourth Committee of the General Assembly among others.
(c). Other Conventions on Human Rights and Fundamental Freedoms

In the present section, consideration is given to the implementation proce-
dures provided for in the major United Nations instruments which have not
been dealt with above. As noted in the previous chapter, several other in-
struments are presently being drafted within the UN system but it is not
possible at this stage to review their approach to implementation. 16
i) WARCRIMESAND CRIMESAGAINSTHUMANITY, INCLUDINGGENOCIDE

ANDAPARTHEID
Convention on the Prevention and Punishment of the Crime of Genocide

Article VI of the Convention provides that persons charged with genocide
or any of the other acts enumerated in Article III of the Convention are to be
tried by a competent tribunal of the State in the territory of which the act
was committed, or by such international penal tribunal as may have jurisdic-
tion, with respect to those contracting parties which shall have accepted its
jurisdiction.
Article VIII provides that any contracting party may call upon the compe-
tent organs of the Unitd Nations, as they consider appropriate, for the preven-
tion and suppression of acts of genocide or of any of the other acts enumer-
ated in Article III.
The question of an international criminal jurisdiction is taken up below.
In a recent study of the question of the prevention and punishment of the
crime of genocide by a special Rapporteur of the Sub-Commission on Pre-
vention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/416 of
1978) detailed consideration has been given to questions of implementation of
the Convention.
International Convention on the Suppression and Punishment of the Crime

of Apartheid
This Convention entered into force in July 1976. According to Article V of
the Convention, persons charged with the acts enumerated in its Article II
may be tried by a competent tribunal of any State party to the Convention,
which might acquire jurisdiction over the person of the accused, or by an
international penal tribunal having jurisdiction with respect to those States
parties which shall have accepted its jurisdiction.
Under Article VI of the Convention, States parties undertake to accept
and carry out in accordance with the Charter the decisions taken by the
Security Council aimed at the prevention, suppression and punishment of the
crime of apartheid, and to co-operate in the implementation of decisions
adopted by other competent organs of the United Nations, with a view to
achieving the purposes of the Convention. This provision is not dependent on
prior initiative of a State party, as is Article VIII of the Genocide Conven-
tion, but the text of Article VIII of the latter is also included as Article VIII
in the Apartheid Convention. It was explained during the discussion that
States could call upon the Special Committee on Apartheid, the Commission
on Human Rights or any other body.
The Convention contains a system of reporting. Under Article VII the
States parties undertake to submit periodic reports to the group established
under Article IX on the legislative, judicial, administrative or other mea-
sures that they have adopted and that give effect to the provisions of the
Convention; copies of such reports are to be transmitted through the Secretary-
General to the Special Committee on Apartheid. The main function with
respect to reports, however, is given to the group appointed by the Chairman
of the Commission on Human Rights. Under Article IX the Chairman is to
appoint a group consisting of three of its members, who are also representa-
tives of States parties to the Convention, to consider the reports. The group
may meet for a period of not more than five days, either before the opening or
after the closing of a session of the Commission, to consider the reports.
The Commission is empowered, under Article X, paragraph 1 (a), to re-
quest United Nations organs, when transmitting copies of petitions under
Article 15 of the International Convention on the Elimination of All Forms of
Racial Discrimination, to draw the Commissions attention to complaints con-
cerning acts which are enumerated in Article II of the Convention.
Under Article X, paragraph 1 (c), the Commission is empowered to re-
quest information from the competent United Nations organs, concerning
measures taken by the authorities responsible for the administration of Trust
and Non-Self-Governing Territories, and all other Territories to which Gen-
eral Assembly Resolution 1514 (XV) applies, with regard to such individuals
alleged to be responsible for crimes under Article II of the Apartheid Con-
vention, who are believed to be under their territorial and administrative
jurisdiction.
The Commission, under Article X, paragraph 1 (b), is to prepare, on the
basis of reports from the competent organs of the United Nations and peri-
odic reports of the States parties (and presumably the report of the group of
the Commission thereon), as well as on the basis of complaints in copies of
petitions and information submitted by the competent organs referred to in
Article X, paragraph 1 (a) and (c), though these are not clearly specified (they
do not appear to be the same as reports from competent organs), a list of
individuals, organizations, institutions and representatives of States, who
are alleged to be responsible for the crimes enumerated in Article II, as well
350 Kamleshwar Das
as those against whom legal proceedings have been undertaken by States

parties.
Article X states that pending the achievement of the Declaration on the
Granting of Independence to Colonial Countries and Peoples, contained in
General Assembly Resolution 1514 (XV) of 14 December 1960, the provisions
of the Apartheid Convention are in no way to limit the right of petition
granted to those peoples by other international instruments or by the United
Nations and its specialized agencies.
At its first session, in 1978, the Group of Three established under the
Convention drew up a set of guidelines to assist States parties in the prepara-
tion of their reports. In 1980, the Group examined the reports submitted by
States parties in the presence of those States representatives.7 It also
made a number of recommendations to the Commission in connection with
the more effective implementation of the Convention. ls
The question of an international criminal jurisdiction

The Genocide (Article VI) and Apartheid (Article V) Conventions provide
for trial of persons charged with either crime by an international penal tribu-
nal, if there is one. Such a possibility was also considered in connection with
the 1968 Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity.
When adopting the Convention on Genocide, the General Assembly adopted
a resolution in which, considering that the discussion of the Convention had
raised the question of the desirability and possibility of having persons charged
with genocide tried by a competent international tribunal, and considering
that, in the course of development of the international community, there will
be an increasing need for an international judicial organ for the trial of certain
crimes under international law, it invited the International Law Commission
to study the desirability and possibility of establishing an international judi-
cial organ for the trial of persons charged with genocide or other crimes, over
which jurisdiction might be conferred upon that organ by international
conventions. a
The Commission was requested to pay attention to the possibility of estab-
lishing a criminal chamber of the International Court of Justice. The Interna-
tional Law Commission concluded that an international criminal court was
both possible and desirable but recommended it to be a separate institution
rather than a criminal chamber of the Court. Thereafter two committees
appointed by the General Assembly considered the matter and draft statutes
for such a separate court were submitted, the last in 1954. However, the
General Assembly in 1954 and 1957 decided that the problems raised were
closely related to defining aggression and to the draft code of offences against
the peace and security of mankind and deferred consideration until the latter
were taken up. lzl
In 1974 the Assembly approved (Res. 3341 (XXIX)) the text defining ag-
gression, and in 1978 recommenced discussion of the draft code of offences

against the peace and security of mankind, which is continuing. Although it
has not resumed discussion of the question of an international criminal jurisdic-
tion, in 1979 it approved, within the context of the implementation of the
programme for the Decade for Action to Combat Racism and Racial Discrim-
ination, the undertaking of a study to include the establishment of interna-
tional jurisdiction envisaged by the International Convention on the Suppression
and Punishment of the Crime of Apartheid (Res. 34124, annex. para. 20) by
the Commission on Human Rights Ad Hoc Working Group of Experts on
southern Africa. 12
Within the work on the implementation of that Convention enquiries have
been directed to States parties to suggest ways and means for the establish-
ment of the international penal tribunal referred to in Article V of the Conven-
tion. A report by the Group of Three, containing suggestions concerning such
a tribunal, was submitted to the Commission on Human Rights in 1981. 12
ii) STATE~SSNES~ANI) REFUGEES
Convention on the Reduction of Statelessness

Article 11 of the Convention provides that the States parties are to pro-
mote the establishment within the framework of the United Nations, as soon
as may be after the deposit of the sixth instrument of ratification or acces-
sion, of a body to which a person claiming the benefit of the Convention may
apply for the examination of his claim and for assistance in presenting it to
the appropriate authority. In 1976, the General Assembly, in Res. 31/36,
after noting that the United Nations High Commissioner for Refugees was
already carrying out the functions required under the Convention, requested
him to continue to so do.
Convention relating to the Status of Stateless Persons

Article 33 provides for States parties to communicate to the Secretary-
General the laws and regulations which they may have adopted to ensure the
application of the Convention.
Convention and Protocol relating to the Status of Refugees

Both the Convention and the Protocol contain identical provisions concern-
ing co-operation of the national authorities of States parties with the United
Nations and communication by them of national legislation and regulations on
their application to the Secretary-General.
The States parties undertake to co-operate with the Office of the United
Nations High Commissioner for Refugees in the exercise of its functions, and
they are in particular to facilitate its duty of supervising the application of the
provisions of the Convention and the Protocol. In order to enable the High
Commissioner to make reports to the competent organs of the United Na-
tions, the States parties undertake to provide in the appropriate form infor-
352 Kamleshwar Das
mation and statistical data requested concerning: a) the condition of refugees,

b) the implementation of the Convention and the Protocol, and c) laws, regu-
lations and decrees which are, or may hereafter be, in force relating to
refugees. lZ4
iii) STATUSOFWOMEN
The Convention on the Political Rights of Women,z5 the Convention on the

Nationality of Married Women26 and the Convention on Consent to Mar-
riage, Minimum Age for Marriage and Registration of Marriages do not
contain specific international measures of implementation.
Under the International Convention on the Elimination of All Forms of
Discrimination Against Women, which was adopted by the General Assem-
bly on 18 December 1979, but which had not entered into force as of 1 January
1982, a Committee on the Elimination of Discrimination against Women is to
be established. At the time of entry into force of the Convention (requiring
20 ratifications or accessions) it is to consist of 18 members; it is to be
increased to 23 after 35 States parties have ratified or acceded to it. Members
are to be experts of high moral standing and competence in the field, will be
elected by States parties from among their nations and shall serve in their
personal capacity. In the election, by secret ballot, consideration will be
given to equitable geographical distribution and to the representation of the
different forms of civilization as well as the principal legal systems (Art.
17(i)).
Members are elected for a four-year term with half being elected every two
years. For the tilling of casual vacancies, the State party whose expert has
ceased to function as a member of the Committee shall appoint another
expert from among its nationals, subject to the approval of the Committee.
As with the Human Rights Committee the U.N. Secretary-General is to
provide the necessary staff and facilities for the effective functioning of the
Committee. The Committee is to adopt its own rules of procedure and to elect
its officers for a two-year term.
Under Article 18 of the Convention, the States parties undertake to submit
to the Secretary-General for consideration by the Committee, a report on the
legislative, judicial, administrative or other measures which they have adopted
to give effect to the provisions of the Convention and on the progress made in
this respect:
(a) Within one year after the entry into force for the State concerned;
(b) Thereafter at least every four years and further whenever the Com-
mittee so request.
Reports may indicate factors and difficulties affecting the degree of fulfill-
ment of obligations under the present Convention. The Committee will nor-
mally meet for a period of not more than two weeks annually in order to
consider these reports (Art. 20). The Convention also provides that the Com-
mittee shall, through the Economic and Social Council, report annually to the
General Assembly on its activities and may make suggestions and general
recommendations based on the examination of reports and information re-
ceived from the States parties. Such suggestions and general recommenda-
tions shall be included in the report of the Committee together with comments,
if any, from States parties (Art. 21(i)).
The specialized agencies shall be entitled to be represented at the consid-
eration of the implementation of such provisions of the present Convention as
fall within the scope of their activities. The Committee may invite the special-
ized agencies to submit reports on the implementation of the Convention in
areas falling within the scope of their activities (Art. 22).
It is also stated that nothing in the Convention shall affect any provisions
that are more conducive to the achievement of equality between men and
women which may be contained: (a) In the legislation of a State party; or (b)
in any other international convention, treaty or agreement in force for that
State (Art. 23). Moreover, under Article 24 States parties undertake to
adopt all necessary measures at the national level aimed at achieving the full
realization of the rights recognized in the Convention.
Finally, it should be noted that the Convention provides that any dispute
between two or more States parties concerning the interpretation or applica-
tion of the Convention which is not settled by negotiation shall, at the request
of one of them, be submitted to arbitration. If, within six months from the
date of the request for arbitration, the parties are unable to agree on the
organization of the arbitration, any one of those parties may refer the dispute
to the International Court of Justice by request in conformity with the Stat-
ute of the Court. However, each State party may at the time of signature or
ratification of the Convention or accession thereto declare that it does not
consider itself bound by this provision in which case any other States parties
shall not be bound by it with respect to any State party which has made such a
reservation (Art. 29).
iv) TRAFFICINPERSONSANDSLAV~YCONVENTIONS
Under Article 21 of the Convention for the Suppression of the Traffic in

Persons and of the Exploitation of the Prostitution of Others (1949), the
States parties are to communicate to the Secretary-General such laws and
regulations as have already been promulgated in their States, and thereafter
annually, such laws and regulations as may be promulgated relating to the
subject of the Convention, as well as all measures taken by them concerning
the application of the Convention. The information received is to be published
periodically by the Secretary-General and sent to all Member States of the
United Nations and to non-Member States eligible to become parties to the
Convention.
At the request of the Social Commission, a report was submitted to it in
1958 primarily based on the policy and principles in the Convention. It in-
cluded two studies dealing respectively with a programme of action to com-
354 Kamleshwar Das
bat the traffic in persons and the exploitation of the prostitution of others and
with measures prerequisite to and in conjunction with the suppression of the
regulation of prostitution.27
In 1959, the Council drew the attention of Governments of States parties
and of those eligible to become parties to the Convention to the report and in
particular to the programme of action set out in Chapter IX of it.
The States parties to the Slavery Convention of 1926, as amended by the
Protocol of 1953, undertake, under Article 7, to communicate to each other
and to the Secretary-General any laws and regulations which they may enact
with a view to the application of the provisions of the Convention. 12
Under Article 8 of the 1956 Supplementary Convention on the Abolition of
Slavery, the Slave Trade, the Institutions and Practices Similar to Slavery,
the States parties undertake to co-operate with each other and with the
United Nations to give effect to the provisions of the Convention. They also
undertake to communicate to the Secretary-General copies of any laws, regu-
lations and administrative measures enacted or put into effect to implement
the provisions of the Convention. The Secretary-General is to communicate
the information received to other parties and to the Economic and Social
Council as part of the documentation for any discussion which the Council
might undertake with a view to making further recommendations for the
abolition of slavery, the slave trade or the institutions and practices which
are the subject of the Convention.
Briefly, the efforts which have been undertaken in this connection, and
which have not always been confined to States parties to the Convention,
have related to: the establishment of the Working Group on Slavery of the
Sub-Commission on Prevention of Discrimination and Protection of Minori-
ties, in 1974,12 the appointment of Rapporteurs on the question, gathering
information and making surveys concerning the provisions of the Conven-
tions with increasingly enlarged scope taking in other practices and manifes-
tations, such as slavery-like practices of apartheid and colonialism, traffic in
persons, transfer and inheritance of women, etc.; seeking active assistance
and co-operation of United Nations bodies, specialized agencies, inter-
governmental organizations, INTERPOL, and non-governmental organiza-
tions; furnishing technical assistance and establishing a list of experts on
economic, sociological, legal and other disciplines who advise governments
(neither of these have apparently been asked for by governments); making
general and specific recommendations for various actions, such as ratification
of certain IL0 Conventions; providing penal sanctions for certain acts de-
fined in the Conventions.
As authorized by the Economic and Social Council in 1974, and as deter-
mined by Resolution 7 (XXVI) of the Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, the Sub-Commision appointed a
group of five from among its membership to meet for not more than three
working days, prior to each of its annual sessions. The group is to review
developments in the field of slavery and the slave trade in all their practices
and manifestations, including the slavery-like practices of apartheid and co-
lonialism, the traffic in persons and the exploitation of the prostitution of
others as they are defined in the Convention on Slavery of 1926, the Supple-
mentary Convention of 1956 and the Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others of
1949. The group is to consider and examine any information from credible
sources on the subject of slavery and slavery-like practices with a view to
recommending remedial action.
On 21 August 1974, in Resolution 11 (XXVII), the Sub-Commission, inter
aliu, requested Governments, specialized agencies, regional inter-governmental
organizations, non-governmental organizations in consultative status and in-
dividuals to submit to the Secretary-General for transmission to the Working
Group such reliable information on slavery and the slave trade in all their
practices and manifestations, the traffic in persons and the exploitation of the
prostitution of others as may be available to them. The Group, which had
held its first session, was also asked to make proposals for future methods of
work.
In 1976, the Sub-Commission, after considering the report of the second
session of the Group, decided to have the Working Group meet biennially and
to continue with its mandate, and to consider such problems as the sale of
children and debt bondage, and requested world-wide publicity to be given to
the Groups terms of reference (Res. 5 (XXIX) in doe. ECN.411218). The Sub-
Commission also requested States parties to comply with the reporting proce-
dure under Article 21 of the 1949 Convention and asked the Secretary-General
to revive the procedure for the publication of the reports received. States
parties to the 1956 Supplementary Convention on Slavery were called upon to
report annually on the legal, administrative and practical situation within
their countries in relation to the abolition of the institutions and practices
covered by the Convention. The Sub-Commission also requested close assistance
of other United Nations agencies such as the ILO, Unesco, the FAO, the
United Nations High Commissioner for Refugees and Unicef, as well as other
bodies, such as INTERPOL (which had already been requested by the Council
to forward to the Secretary-General and the Sub-Commission annually any
information at its disposal with regard to international traffic in persons,
including reports received from its national central bureau), and all relevant
non-governmental organizations in consultative status, in compiling informa-
tion and furthering the work of the Group. Wide publicity was requested to be
given to slavery-like practices, including in particular those of South Africa
and Southern Rhodesia, as set out in the Groups report (doe. EiCN.4iSub.21373).
V) CONVENTION ON THE INTERNATIONAL RIGHT Ok CORRECTION
Under the Convention, the Contracting States agree that when a Contract-
ing State contends that a news dispatch capable of injuring its relations with
356 Kamleshwar Das
other States or its national prestige or dignity, transmitted from one country
to another by correspondents or information agencies of a Contracting or
non-Contracting State, and published or disseminated abroad, is false or
distorted, it may submit its version of the facts (called communique?) to the
Contracting States within whose territories the dispatch has been published
or disseminated. The communique? must be without comment or expression
of opinion and be no longer than is necessary to correct the alleged inaccuracy
or distortion. With the least possible delay, a Contracting State receiving
such a correction shall release the communiqzk to correspondents and infor-
mation agencies through the channels customarily used for the release of
news concerning international affairs for publication. In the event that any
Contracting State to which a communiqub has been transmitted fails to fulfil
this obligation, the State exercising the right of correction may submit the
communiqud to the Secretary-General, together with the text of the dispatch
to which it relates, and at the same time notify the State complained against
of this act. The latter State may, within five clear days after receiving such
notice, submit its comments to the Secretary-General. These should relate
only to the allegation that it has not discharged its obligations mentioned
above. The Secretary-General, in any event, within ten clear days after
receiving the communiqud, is to give appropriate publicity to it, together
with the dispatch and the comments, if any, submitted to him by the State
complained about.
The complaining State has two remedies if the receiving State fails to carry
out its obligations: reciprocal treatment of a future communiqzk from the
receiving State and recourse to the Secretary-General as outlined above. As
regards the first, Article III (2) provides that, when a receiving State does
not discharge its obligations, the other State may accord, on the basis of
reciprocity, similar treatment to a communiquk thereafter submitted to it by
the defaulting State.
With respect to the functions of the Secretary-General, there is little to
add except to say the Convention fails to allow for any margin of apprecia-
tion by the Secretary-General who probably has to carry out his tasks irre-
spective of irregularities in the procedure or whatever his views on the
dispatch concerned being false or distorted or not having been transmitted
from one country to another. 130
NOTES
1. See Chapter 10, stcpra.
2. The conferences to draw up the 1956 Supplementary Convention on Slavery and the
1951 Convention relating to the Status of Refugees.
3. See UN does. A/35/312 and Add. (1980) concerning a Review of the Multilateral
Treaty-Making Process.
4. See EiCN.4BR.238 (1951) concerning sponsorship by a member of the Commission
on Human Rights of proposals originaIIy put forward by the ILO. As regards non-governmental
organizations, the arrangements for consultation with them made by the Economic and
Social Council were confined to certain categories of them, at the beginning, but later
extended to all those with consultative status and many of them played an important role by
submitting written comments or making oral interventions. Even views of other non-
governmental bodies and individuals were submitted to certain preparatory bodies, particu-
larly in the non-confidential lists of written communications prepared for them.
5. See documents of the United Nations Conference on International Organizations
(UNCIO), 1945, Vol. 3, pp. 271, 383, 602; Vol. 6, pp. 324-325 and 456.
6. The Convention relating to the Status of Refugees and the International Convenants
on Human Rights respectively.
7. These principles are set out in Articles 26 and 27 of the Vienna Convention on the
Law of Treaties.
8. In the same Resolution, the Assembly asked the Secretary-General in respect of
future conventions to act as depository for documents containing reservations or objections
thereto without passing on the legal effect of such documents, which are to be communi-
cated to all States concerned, to whom it would be left to draw the legal consequences. In its
Resolution 1452 (XIV) of 7 December 1959, the Assembly asked the Secretary-General to
follow the same practice with respect to United Nations conventions concluded before, as
well as after, its Resolution of 1952. See also Articles 19 to 23 of the 1969Vienna Convention
on the Law of Treaties.
9. A133118(1978), Chapter VI. See also, as regards the International Covenant on Civil
and Political Rights, A/32/44, para. 138.
10. As the late Sir Hersch Lauterpacht wrote, The preoccupation with the enforce-
ment of the Bill of Rights ought not to conceal the fact that the most effective way of giving
reality to it is through the normal activity of national courts and other organs applying the
law of the land, International Lau! and Hz~man Rights, New York, Praeger, 1950, p. 356.
11. It has been said that in these matters there must be patience; that it was eight years
before the Committee of Experts was established by the ILO; that there is a time-lag
involved in establishing confidence in a procedure, for instance, the authority of the Com-
mittee of Experts was a gradual development; and that there is a third time-lag which
involves giving a government time to submit its case, to make a finding thereon, to accept
that finding and to implement it fully. Jenks, The International Protection of Trade Union
Rights, The International Protection qfHuman Rights, Luard, D.E.T., New York, Praeger,
1967, pp. 244-246.
12. It is no longer a law between States only and exclusively but a law which embodies
guarantees of individual rights which are simultaneously national and international in charac-
ter and are enforceable by both national and international procedures. C. W. Jenks, The
Common Law ofMankind, London, Stevens, 1956, p. 46.
13. The late Mrs. Eleanor Roosevelt said at the United Nations on 27 March 1958:
Where, after all, do universal human rights begin? In small places, close to home-so close
and so small that they cannot be seen on any map of the world. Yet they are the world of the
individual persons: the neighborhood he lives in; the school or college he attends; the
factory, farm or office where he works. Such are the places where every man, woman and
child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless
these rights have meaning there, they have little meaning anywhere. Without concerted
citizen action to uphold them close to home, we shall look in vain for progress in the larger
world. See Teaching Human Rights: A Handbook for Teachers, United Nations Publica-
tion: Sales No. 63.1.34.
14. The current provisional rules of procedure are contained in CERDICI35 (1978).
15. See rules of procedure 34 and 62; A/9618, paras. 21-30 and decision 1(1X); and
A/32/18, paras. 331-333 and decision 2 (XVI).
16. Article 8.5(b).
17. A/8718, paras. 4 and 5; A/9018, paras. 28-30.
358 Kamleshwar Das
18. Ibid., Chapter X, Section A, Decision 2 (VII).

20. A/8027, para. 14.
21. A/8718, para. 27 and the discussion is summarized in paras. 28-33.
23. The second sentence of para. 1 of Art. 9 was voted on separately and adopted by 85
votes to none, with seven abstentions (A/6181, para. 114 (a) (iii)). Such a provision is not
included in Art. 40 of the Covenant on Civil and Political Rights or, for that matter, in any
other international convention on human rights. That is not to say that further information
cannot be requested under other systems of reporting.
24. Contrast this detailing of measures with the provisions of Art. 16 of the Covenant on
Economic, Social and Cultural Rights and Art. 40 of the Covenant on Civil and Political
Rights where the term measures was considered broad and wide in meaning to encompass
all measures, including legislative, judicial and administrative measures.
25. See A/8027, Annex III for 1970guidelines and A/35/18, Annex IV for 1980guidelines.
26. A/35/18, paras. 42-53.
27. See Committee on the Elimination of Racial Discrimination and the Progress
Made Toward the Achievement qf the Objectives of the International Convention on the
Elimination of All Forms of Racial Discrimination, UN Sales No. E.79.XIV.4, 1979,
paras. 130-139.
28. A/8718, para. 25.
29. A/9018, paras. 317-322.
30. See A/10018, paras. 185-187.
31. See A/8027, para. 34.
32. For various proposals, decisions and discussions, see A/6181, paras. 144-153, and
A/C.3/SR. 1355-1357and 1362-1363.An enquiry into the difficulties, problems and feasibility
of systems for national bodies is a subject worthy of further study in depth, preferably in a
comprehensive manner to cover national, regional and international co-operative efforts.
33. Article 14, paras. 1 and 3.
34. Article 14, para. 2.
36. Article 14, paras. 6-8.
37. While a brief indication is given in this chapter concerning the working of Art. 15, a
deeper analysis concerning its working ought to be undertaken, as should its impact on the
inhabitants of the dependent Territories and the Administering Powers in achieving the
principles and objectives of the Convention.
38. A/8027, Annex IV, para. 9.
39. E.g. A/10018, para. 197; A/31/18, para. 259; A/32118, para. 343; A/34/18, para. 494;
and A/35/18, para. 476. For the response of the Committee of Twenty-four (now 25) see
A/35/18, Annex V.
40. A/8718, paras. 109-110, A/9018, para. 326, and Decision 2 (VIII); see also A/9618,
paras. 256-257.
41. A/8718, paras. 122-132, and decision 2(VI).
42. A/34/18, Chap. III. See also General Assembly resolution 35/40 on the Committee
expanding its cooperation with Unesco and ILO.
43. A/35/18, chap. III.
44. A/9018, letter of transmittal of the report by the Chairman of the Committee.
45. A/10018, Chapter II C and Chapter VII B.
46. General Assembly Resolutions 3134 (XXVIII) (1973), 3223 (XXIX) and 3225 (XXIX)
(19741,3266 (XXIX) (1974), 3377 (XXX) and 3381 (XXX) of 1975.
47. During 1980 the Committee considered undertaking the preparation of a study on
these two Articles but deferred a decision until 1981. A/35/18, para. 510.
48. A comprehensive documentary reference to United Nations material on this subject
does not exist. Considerable material and documentary references before 1954 may be
found in the annotations to the Covenants, prepared by the Secretary-General (doe. A/2929).
Thereafter, see the documents of the General Assembly and ECOSOC, the UN Yearbooks
on Human Rights the UN Juridical Yearbooks since 1963, which include some bibliograph-
ical material of outside publications, and the bibliography to the present textbook. A full
commentary and bibliographical material on the Covenants and the Optional Protocol are
badly needed.
48a. Article 16, para. 1.
51. Article 16, para. 2 (a).
53. See, for example, Chapters 12 and 13 infra.
54. Article 16, para. 2 (b).
55. Article 18.
56. The general guidelines for Articles 6 to 9 of the Covenant are contained in E/1978/8,
annex, and those for Articles 10 to 12 in E/198016,annex.
57. Article 16, para. 2 (a) and Council resolution 1988 (LX), para. 4.
58. Articles 19 and 20. The Council has not, as of 1981, decided to involve the Commis-
sion in this or in any other way in the implementation of the Covenant. Some indication of
the role envisaged for the Commission in the preparatory work is given in A/2929, Chap. IX,
para. 12.
59. Article 21.
60. Article 22.
61. Article 23.
62. A/6546, para. 74.
63 The possibility of providing for inter-State and individual communications was dis-
cussed in the Commission on Human Rights, but proposals relating to them were not
adopted. See A/2929, paras. 42-48.
64. See A/32/44; A133140;A/34/40; and A/35/40; A/32/333; A/331472;A/341687;and A/351637.
67. Article 38.
68. Article 29.
69. Article 31.
70. Article 32.
71. Article 35. From 1981, besides receiving travel and daily subsistence allowances for
meetings of the Committee, its members are paid honoraria of $3000 and its Chairman
$5,000 (General Assembly res. 351218).
72. Articles 33 and 34.
73. These provisions may be contrasted to those on vacancies in the Committee on the
Elimination of Racial Discrimination.
74. Article 39. The provisional rules of procedure, as revised, are contained in
CCPRICI3IRev.l (1980). See for summaries of discussion: A/32/44, paras. 16-94; A/33/40,
para. 587; and A/34/40, paras. 28 to 53. The normal procedure set out in the rules of United
Nations organs is that decisions are to be made by a majority vote of the members present
and voting, which is included in the provisional rules of procedure of the Committee on the
Elimination of Racial Discrimination in the absence of any specific voting requirements in
the Convention establishing that Committee. But the Covenant Article 39, para. 2(b) omits
the words and voting. Accordingly, if a bare quorum of 12 members of the Human Rights
Committee are present and a decision is put to a vote it can be adopted only if there are 7
affirmative votes for it. It is immaterial that other votes cast are against or abstentions;
there is nothing in the record of discussions on Article 39, para. 2, to suggest that an
Kamleshwar Das
abstention is to be regarded as a negative vote as the Committee was informed. See

CCPRICISR.7, paras. 37 to 40. As the Committee does not appear so far to have taken any
votes the question posed here has not actually arisen. It is also to be noted that a footnote to
rule 51 of the provisional rules of the Committee sets out the view generally expressed by
the members of the Committee that its method of work normally should allow for attempts
to reach decisions by consensus before voting, provided that the Covenant and the rules of
procedure are observed and that such attempts do not unduly delay the work of the Com-
mittee. Members agreed that the Chairman may, at any meeting and at the request of any
member, put the proposal to a vote. See A/32/44, paras. 26 to 34.
75. Article 36. For a discussion on the assistance required by the Committee from the
Secretariat and on the proper role of the Secretary-General in the performance of his
functions under the Covenant see CCPRICISR.153 and 174 (1979).
77. Article 40, para. 1 (a) and (b). At its second session, in 1977, the Committee drew up
a list of general guidelines regarding the form and contents of reports from States parties
under Article 40 of the Covenant. See A/32/44, paras. 136 to 141 and annex IV. See also
A/35/40, annexes III and IV concerning status of submission of reports by States parties and
their non-receipt.
80. A/33/40, para. 605.
81. A/35/40, para. 414.
85. Article 45.
87. Article 41, para. 1 (a). Although the optional declaration is to be made for inter-
State communications in case of claims that another State party is not fulfilling its obliga-
tions under the Covenant (Art. 41, para. l), these obligations arise out of the provisions of
the Covenant and, therefore, are covered by the broader phrase not giving effect to the
provisions of the Covenant (Art. 41, para. 1 (a)).
88. Article 41, para. 1 (h), (i).
89. Article 41, para. 1 (h), (ii).
90. Article 42, para. 1 (a). See also A/34/40, paras. 51 and 52, and annex III, rule 77E.
91. Article 42, para. 1 (b).
95. Article 41, para. 1 (g).
96. Article 42, para. 7 (c).
97. Article 42, para. 7 (cl.
98. Article 13, para. 1 of that Convention and A/6546, para. 441.
99. I.C.J. Reports, 1966, p. 6.
100. Article 6 of the Optional Protocol.
101. By way of example reference may be made to the Assembly resolution of 1980
(35/132) by which the Assembly: noted with appreciation the report of the Committee and
expressed satisfaction at the serious and constructive manner in which it was continuing to
undertake its functions; appreciated that it continues to strive for uniform standards in the
implementation of provisions of the Covenant and the Protocol and emphasized the impor-
tance of the strictest compliance by States parties with their obligations; urged States
parties which have not yet done so to submit their reports as speedily as possible and those
which have been requested to provide additional information to comply, as well as to
consider making declarations under Article 41; took note that the Committee is considering
the question of the follow-up to its consideration of the reports; again invited States to
become parties to the Covenant and the Optional Protocol; welcomed the measures already
taken by the Secretary-General to improve the publicity for the work of the Committee and
encouraged the latter to continue its consideration of this question; and requested the
Secretary-General to make appropriate arrangements for holding meetings of the Commit-
tee in developing countries.
102. See A/32/44, Chapters III and V; A/33/40, Chapter IV; A/34/40, Chapter V and
annexes VI and VII; A/35/40, Chapter IV and annexes V to X; CCPRICI3IRev.1, rules 78 to
94. On the use of the words petition and communication, see AiC.3iSR.1418, para. 8;
AIC.3ISR.1438, para. 44; and A/5411, Part IV.
103. Rejected by 41 votes to 39, with 16 abstentions. A/6546, para. 485.
104. Adopted in the Third Committee by 59 votes to 2, with 32 abstentions. A/6546, para.
597. Adopted in plenary meeting of the Assembly by 66 votes to 2, with 38 abstentions.
AIPV. 1496.
105. See A/C.3/SR. 1440, para. 24.
106. A/35/40, para. 393, and rule 90, para. (l), (b).
107. A/35/40, para. 394.
108. A/33/40, para. 591.
109. It is to be noted that several States parties, in ratifying or acceding to the Protocol,
have made reservations to Article 5 (2) in connection with other procedures of international
investigation. See UN publication, Sales No. 81.V.10, chapter IV, 5.
110. See A/33/40, paras. 582 to 585, and A/35/40, para. 395.
111. See A/35/40, para. 396.
112. See A/35/40, para. 397.
113. See A/35/40, para. 388.
114. See A/34/40, annex VII; A/35/40, Chapter IV and annexes V to X. See also the
statement of the representative of Uruguay to the General Assembly. AiPV.92 (1980), p.
190.
115. Article 7.
116. It may be mentioned that all of the conventions dealt with here except the Conven-
tion on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity include provisions for settlement of disputes by the International Court of Justice.
117. The reports of the Group are contained in ECN.411286 (1978); E/CN.4/1328 (1979);
and EiCN.411358 (1980). States reports under the Covenant are in documents E/CN.4/1277
and Add.; E/CN.4/1353 and Add.; and EiCN.411415 and Add.
118. Resolutions of the Commission relating to the Groups work are: 13 (XxX111)(1977);
7(XXXIV)(1978); lO(XXXV)(1979); 13(XXXVI)(1980); G(XXXVI1) (1981).
119. Resolution 260 B (III) of 9 December 1948. For a memorandum by the Secretary-
General on an early Historical Survey of the Question of International Criminal Jurisdic-
tion, see United Nations publication: Sales No. 1949.V.S.
120. General Assembly Resolution 489 (V) of 12 December 1950 and Resolution 687
(VIII) of 5 December 1952. For the reports of the Committees, see ibid., Sixth Session,
Supplement No. 11 (A/2136), and Ninth Session, Supplement No. 12 (A/2645).
121. Resolution 898 (IX) of 14 December 1954 and Resolution 1187 (XII) of 11 December
1957.
122. The study, including a draft statute for a proposed International Criminal Court, is
contained in EiCN.411426 (1981).
123. EiCN.411417 (1981).
124. Convention, Art. 35; Protocol, Art. II; Convention, Art. 36; Protocol, Art. III.
125. For a brief history and commentary on the Convention, see United Nations publica-
tion: Sales No. 1955.IV. 17.
362 Kamleshwar Das
126. For a historical background and a commentary on the Convention, see United Na-
tions publication: Sales No. 62.1V.3; and Sales No. 1964.IV.l.
127. Study on Traffic in Persons and Prostitution, United Nations publication: Sales
No. 59.1V.5.
128. See The Suppression of Slavery, UN Sales No. 1951.XIV.2; and Report on Slavery,
UN Sales No. E.67.XIV.2, which is presently being updated (see Economic and Social
Council Decision 1980/123).
129. See Chapter 10, supra, n. 29.
130. The Convention falls short of imposing any legal obligations on the media of informa-
tion and refers in the preamble to the difficulty of providing machinery for verifying the
accuracy of corrections which might lead to imposition of penalties.
12 The International Labour
Organisation (ILO)
Nicolas Valticos
Introduction: THE PLACE OF HUMAN RIGHTS IN THE CONSTITUTION

AND THE VARIOUS INSTRUMENTS OF THE IL0 AND
THE LEGAL FRAMEWORK FOR THEIR PROTECTION
(i). HUMAN RIGHTS AND THE CONSTITUTION OF THE IL0
Both the Constitution and the Conventions and Recommendations of the

International Labour Organisation (ILO) have, since 1919, assigned a large
place to human rights and have also been a principal inspiration of the univer-
sal and regional texts relating to economic and social rights, and to certain
civil and political rights.
The initial text of the IL0 Constitution formed Part XIII of the Treaty of
Versailles of 1919 and it was amended and expanded in 1946. It not only
contains provisions relating to the Organisations procedure, but it also estab-
lished certain general principles with regard to which Rene Cassin has writ-
ten that the notion of international common law regarding essential individual
liberties was provided with a basis in treaty form in Part XIII of the Treaty
of Versailles, which constitutes the Charter of the ILO and that that Consti-
tution constitutes a genuine declaration of the workers rights.
The general principles established by the IL0 Constitution are contained
in the first place in its Preamble, according to which conditions of labour
exist involving such injustice, hardship and privation to large numbers of
people as to produce unrest so great that the peace and harmony of the world
are imperilled; and an improvement of those conditions is urgently required:
as, for example, by the regulation of the hours of work, including the estab-
lishment of a maximum working day and week, the regulation of the labour
supply, the prevention of unemployment, the provision of an adequate living
wage, the protection of the worker against sickness, disease and injury aris-
ing out of his employment, the protection of children, young persons and
women, provision for old age and injury, protection of the interests of workers
when employed in countries other than their own, recognition of the principle
of equal remuneration for work of equal value, recognition of the principle of
364 Nicolas Valticos
freedom of association, the organization of vocational and technical education

and other measures.
Fundamental principles of the Organisation are also contained in the Decla-
ration concerning the Aims and Purposes of the ILO adopted by the Inter-
national Labour Conference at Philadelphia in 1944 and incorporated in the
IL0 Constitution in 1946. That Declaration states inter alia:
I
The Conference reaffirms the fundamental principles on which the Organisation is based
and, in particular, that-
(a) labour is not a commodity;
(b) freedom of expression and of association are essential to sustained progress;
(c) poverty anywhere constitutes a danger to prosperity everywhere;.
II
(a) all human beings, irrespective of race, creed orsex, have the right to pursue both their
material well-being and their spiritual development in conditions of freedom and dig-
nity, of economic security and equal opportunity.
These constitutional principles have not merely served as guidelines for

the organs of the ILO, thus assisting them in the preparation of particular
Conventions and Recommendations. They have also constituted fundamental
standards which have given rise to certain direct legal consequences. Thus,
the fact that the principle of freedom of association was affirmed by the IL0
Constitution, into which the Declaration of Philadelphia was incorporated,
served as a basis for the establishment, in 1950, of special machinery for the
protection of freedom of association, which is dealt with below. It was on a
similar basis that the International Labour Conference, acting as a spokes-
man for the social conscience of mankind, took the view, in 1964, that the
policy of apartheid in South Africa was incompatible with the Declaration of
Philadelphia, which the Government of South Africa had undertaken to ob-
serve in accepting the ILOs Constitution, and it condemned that policy and
submitted a detailed programme aimed at eliminating it in the field of labour.
Lastly, the ILOs Constitution established the bases upon which, as will be
seen below, were founded the supervision of the implementation of the stan-
dards formulated by the Organisation, particularly in respect of human rights.
(ii). HUMANRIGHTSANDTHECONVENTIONSANDRECOMMENDATIONS
OFTHE IL0
As important as is the place occupied by human rights in the ILOs Constitu-

tion and as notable as have been the consequences, it is on the Conventions
and Recommendations adopted by the Organisation that its action to promote
and protect human rights within the sphere of its competence has been based.
Conventions are texts intended to create international obligations for the
States which ratify them, whereas the purpose of Recommendations is not to
create obligations but to define standards designed to provide guidance for
governments. It is not necessary to give a detailed account here of the con-
The International Labour Organisation (ILO) 365
tent of these various texts or of their relation to human rights since these
matters are dealt with elsewhere in this work. Besides, the question has been
covered by numerous studies, as well as by official reports.4 I shall merely
give a very general outline of that body of standards-often described as the
International Labour Code-by means of which it will be possible to appre-
ciate more exactly the import of the machinery set up for the purposes of
their implementation.
Between 1919 and 1981 a total of 156 Conventions and 165 Recommenda-
tions were adopted by the ILO, and it may be said5 that practically all these
texts concern the promotion and protection of human rights in the broad
sense, since even the most technical of them relate to concrete aspects of the
right to just and favourable working conditions provided for in article 7 of the
International Covenant on Economic, Social and Cultural Rights.
Some of these texts, however, are more particularly concerned than others
with fundamental rights and freedoms: these are, in particular, the Conven-
tions on freedom of association, the main one of which is Convention No. 87 of
1948. In this connection, a resolution adopted by the International Labour
Conference in 1970 stressed that trade union rights should be founded on
respect for the civil liberties set forth in particular in the Universal Declara-
tion of Human Rights and in the International Covenant on Civil and Political
Rights, and that the absence of such civil liberties removes all significance
from the concept of trade union rights. Special mention must also be made of
the 1930 and 1957 Conventions on forced labour, the second of which provides
for the suppression of forced or compulsory labour in five categories of cases
and, in particular, as a means of political coercion or education or as a
punishment for holding or expressing political views or views ideologically
opposed to the established political, social or economic system. Lastly, in
respect of equality of opportunity and treatment, the 1958 Convention and
Recommendation (No. 111) concerning Discrimination in Respect of Employ-
ment and Occupation, are basic texts which have provided inspiration for the
Conventions subsequently adopted by Unesco and the United Nations regard-
ing discrimination. Similarly, the Convention (No. 100) and the Recommenda-
tion (No. 90) of 1951 on Equality of Remuneration have had wide repercussions.
Furthermore, various Conventions have been adopted for the protection of
migrant and foreign workers.
In respect of the right to work, a series of Conventions and Recommenda-
tions have dealt successively with unemployment, employment agencies, vo-
cational training and apprentices, employment services and, in 1964, employment
policy, designed to promote full, productive and freely chosen employment.
The right to fair remuneration has been dealt with in Conventions relating to
minimum wages, the protection of wages and social policy as a whole.
The right to satisfactory conditions of work and existence has been the
subject of numerous Conventions, in particular in respect of the reduction of
hours of work, weekly rest, paid annual holidays and occupational safety and
health. The right to social security has been dealt with in several texts
relating to particular branches or establishing an overall minimum standard.
The protection of children and young persons has been sought through
Conventions relating to questions such as the minimum age for employment,
the prohibition of night work, medical inspection and conditions of work.
With respect to work by women, certain Conventions aim at the abolition
of all discrimination between men and women workers in respect of remuner-
ation, while others are designed to ensure protection in the event of child-
birth or against particularly arduous working conditions, such as night work,
work in mines, etc.
(iii). INTERPRETATION OF THE CONSTITUTION AND CONVENTIONS
OFTHE IL0
The Conventions of the ILO, like its Constitution, may present problems of
interpretation which may be referred to the International Court of Justice
(Article 37 of the IL0 Constitution). Opinions in this regard have been re-
quested from the Court only in a small number of cases. The same provision
of the IL0 Constitution also provides for the possibility of appointing a
tribunal for the expeditious determination of any dispute or question refer-
ring to the interpretation of a Convention, but recourse has not so far been
had to this possibility. On the other hand, the Director-General of the Inter-
national Labour Office is frequently consulted by governments regarding the
interpretation to be given to a particular provision of a Convention, and the
opinions which he expresses, while stipulating that he does not have special
competence in the matter, are communicated to the Governing Body of the
Office and published in the Official Bulletin. Such opinions seem to be tacitly
accepted, and provide authoritative documentation in this regard.
(iv). CASE-LAW
As is shown below, several quasi-judicial bodies have been set up by the IL0
in order to supervise and promote the implementation of international labour
Conventions and, more generally, of the standards and principles of the
Organisation. In carrying out this task, these bodies have had to define the
exact scope of the standards. They have thus gradually established a sub-
stantial body of case-law in the broad sense of the term. This is particularly
true of the Committee of Experts on the Application of Conventions and
Recommendations which, in examining the degree of application of ratified
Conventions each year since 1927, has often found it necessary to consider
the effect of particular provisions of Conventions. This interpretative role
has been especially important in respect of Conventions drafted in general
terms, particularly in regard to forced labour, freedom of association and,
more recently, discrimination in employment.7 Another organ which has de-
veloped a considerable body of case-law is the Committee on Freedom of
Association, which is also discussed below. This case-law, which obviously
has to be viewed taking into account the specific context of each case, has
clarified and, in certain respects, supplemented and extended the standards
expressly enshrined in the Conventions and has been the subject of a special
publication.8
The ratification of Conventions

An international labour Convention is binding only for those States that
have ratified it. The IL0 Constitution (Article 19) provides for measures to
promote the application and ratification of Conventions. Under this article,
all Member States of the Organisation are required to submit each Conven-
tion and Recommendation to their competent national authorities (as a gen-
eral rule, the legislative authority), no later than twelve or eighteen months
after it has been adopted, so that those authorities may examine the possibil-
ity of giving effect to them.g Where those authorities decide in the affirma-
tive, States must communicate to the IL0 the ratification of the Convention
under consideration. The international labour Conventions have been very
widely ratified. In 1980, this number had exceeded 4,800. In addition, some
1,040 declarations of application had been registered on behalf of twenty-nine
non-metropolitan territories.
The number of ratifications varies considerably according to the country
and the Convention. Thus, forty-five States have each ratified more than
forty Conventions and eighteen more than sixty whereas nine States have
ratified fewer than ten Conventions. The average number of ratifications for
each Member State is fifty-eight for the West European countries, forty-nine
for the East European countries, thirty-eight for the American countries,
twenty-six for the African countries, nineteen for the Asian countries and
thirty-two for Oceania. Sixty per cent of the total number of ratifications are
from developing countries. It is to be noted in this connection that by virtue
of a practice almost unanimously followed by the new States which become
Members of the ILO, those States have confirmed that they would continue
to be bound by the obligations previously assumed on their behalf by the
States responsible for their international relations. This practice of State
succession has resulted in the registration of more than 1,000 ratifications
representing the confirmation, by sixty new States, of obligations previously
assumed in the name of the territory constituted by those new States prior to
their independence. It has been strongly encouraged by the organs of the
IL0 and, in particular, by the First African Regional Conference, held in
1960. The number of ratifications also differs appreciably according to the
Conventions: forty-two Conventions have each received more than forty rati-
fications, and twenty-one more than sixty. In particular, the six Conventions
directly relating to fundamental rights (freedom of association, forced labour
and discrimination) have received an average of 104 ratifications each.
The procedures and bodies established by the IL0 for the purpose of
ensuring the protection of the human rights set forth in the Constitution and
in the Conventions and Recommendations of the Organisation have a two-

fold objective: on the one hand, to supervise the execution by States of the
obligations assumed under the IL0 Constitution or by virtue of the ratifica-
tion of a Convention and, on the other, to promote, irrespective of any formal
obligation, the application of the standards established by the instruments of
the ILO. This machinery can be divided into two categories: the statutory
machinery applicable to all the conventions and Recommendations of the
ILO, and that machinery relating more particularly to the international pro-
tection of freedom of association. In addition, various supplementary methods
are used such as studies and investigations, educational and training mea-
sures, and technical co-operation.
(a). Supervisory machinery applicable to all the Conventions and

Recommendations
Two major types of machinery have been established to supervise and pro-
mote the application of the standards contained in the ILOs Conventions and
Recommendations: permanent automatic supervision based on the examina-
tion of reports provided by governments, and legal proceedings based on the
filing of complaints.
(i). PERMANENTSUPERVISIONBASEDONTHE EXAMINATION
OFREPORTSFROMGOVERNMENTS
Three separate functions derive from the three categories of reports that
Member States undertake to make to the IL0 under the Organisations Con-
stitution (Articles 19 and 22). The reports relate to:
-information concerning the measures taken to bring the Conventions and
Recommendations before the competent authorities, no later than twelve or
eighteen months after the adoption of those texts, with particulars of the
authorities regarded as competent, and of the action taken by them;
-annual or two-yearly or four-yearly reports on ratified Conventions; the
relevant rules are designed to secure more frequent reporting for certain
Conventions (particularly those concerning basic human rights) as well as in
the initial period following ratification and whenever there exist significant
problems of implementation, or comments are received from employers or
workers organizations. l4 These reports must be drafted on the basis of de-
tailed forms established by the Governing Body of the ILO;
-for non-ratified Conventions and for Recommendations, reports at inter-
vals requested by the Governing Body, concerning national law and practice,
showing the extent to which the State concerned has given effect or proposes
to give effect to those texts, and stating the difficulties which prevent or
delay the ratification of the Convention concerned or the application of the
Recommendation in question. *
Governments are also obliged (Article 23, para. 2, of the Constitution) to
communicate copies of their reports to national employers and workers
organizations. Any observations made by these organizations must be com-

municated to the IL0 by governments, which may also attach their own
comments. A total of some 3,000 reports are supplied each year by governments.
Two bodies are entrusted with the examination of these reports: an inde-
pendent body, the Committee of Experts on the Application of Conventions
and Recommendations; and a body composed of representatives of govern-
ments, employers and workers, the Committee on the Application of Con-
ventions and Recommendations set up at the International Labour Conference.
The Committee of Experts on the Application of Conventions and Recom-
mendations, established in 1927, is composed of persons of recognized com-
petence who are completely independent of governments. This independence
is marked by the fact that the members of that Committee are appointed by
the Governing Body of the IL0 on the recommendation of the Director-General
and not of the governments of the countries of which they are nationals. They
are chosen from among highly qualified persons in the legal and social fields,
principally in the judiciary (several have been chief justices of supreme courts),
education (professors of international law, labour law, etc), or from among
former statesmen. The fundamental principles guiding the Committee have
been, in its own terms, that it has always considered that its functions consist
in pointing out in a spirit of complete independence and entire objectivity
the extent to which the situation in each country is in conformity with the
terms of the Conventions and with the obligations assumed by that country
by virtue of the IL0 Constitution. The members of the Committee must
accomplish their task in complete independence as regards all member States. I6
The Committee of Experts currently consists of twenty members from
various regions of the world. The experts are appointed for periods of three
years and their term of office is generally renewed since continuity makes it
possible to acquire more thorough knowledge of the matters dealt with by the
Committee and also ensures the greater independence of its members.
The Committee of Experts is not a court, but its function is of a judicial
character in that it is required to assess the extent to which national law and
practice are in conformity with the provisions of the IL0 Constitution or
Conventions. Its power of assessment depends on the terms of the Conven-
tions considered and is necessarily fairly broad in connection with Conven-
tions establishing standards which are set out in general terms (for instance
regarding forced labour or freedom of association). In order to give its opin-
ion concerning the conformity of national laws in such cases, the Committee
must, of course, assess the scope which should be attributed to such interna-
tional standards. This sort of case-law developed over the years has acquired
considerable weight. The Committees power of assessment is also broad in
the case of Conventions which provide for the gradual application of a princi-
ple, taking into account the methods in force in the country concerned (for
instance, in respect of equal remuneration, discrimination in employment and
employment policy). The Committees role in such cases is to decide, in
Nicolas Valticos
successive years, whether the measures taken by each State correspond in

good faith to the dynamic character of the Convention and to national conditions.
The Committee allocates among its members-or among working groups
composed of a number of its members-the intitial responsibility for the
questions which are to be examined. After this preliminary work, the result-
ing comments are examined and approved by the Committee as a whole. The
services of the International Labour Office constitute the secretariat of the
Committee. The procedure followed by the Committee is based on documenta-
tion, since the Committee assesses situations on the basis of governments
reports, legislation and any other relevant documentation (for instance, such
observations as may be made by national employers and workers organiza-
tions) and on replies of governments to such comments as the Committee
may have made.
The comments presented by the Committee take the form either of indi-
vidual comments or of general surveys. The Committee makes individual
comments when it is required to give its opinion concerning the execution, by
each State, of its international obligations in regard to the ILO, that is to say
the application of ratified Conventions and compliance with the obligation to
submit Conventions and Recommendations to the competent authorities. These
comments take two different forms: in respect of the most important cases,
observations are made on any discrepancy it has noted (these observations
are included in the printed report of the Committee); in other cases, requests
are communicated directly to the government concerned so that the latter
may reply in its next report (these requests are not published in the printed
report of the Committee, which simply mentions cases in which such requests
have been made). If, within a reasonable period of time, the government does
not reply or does not take the necessary measures, the question may be the
subject of a public observation. The purpose of this method is to include in the
printed report of the Committee only the most important questions and to
provide governments with time to explain or rectify certain situations before
the matter becomes public. The direct request procedure is used to a large
extent. In 1977, the Committee of Experts formulated some 400 observations
and 800 direct requests on the application of ratified Conventions.
In addition to these two types of individual comments, each year the Com-
mittee of Experts carries out a general survey relating to a given area, on the
basis of the reports requested from all States regarding the relevant Conven-
tions and Recommendations--whether or not those States have ratified the
Conventions under consideration. The object of -these studies is to describe
the situation existing in the various States in this regard, to evaluate the
difficulties which may stand in the way of the application of the texts in
question and possibly to suggest means of surmounting those difficulties. In
recent years several general surveys have concerned the Conventions on
fundamental human rights, notably freedom of association (in 1973), forced
labour (in 1962, 1968 and 1979), discrimination in employment (in 1963 and
1971), employment policy (in 1972) and equality of opportunity (in 1975 and
1980).
The Committee on the Application of Conventions and Recommendations
of the International Labour Conference. At each of its annual sessions, the
International Labour Conference appoints a Committee, composed of repre-
sentatives of governments and national employers and workers organiza-
tions, which has the task of examining the question of the application of
Conventions and Recommendations. For the last few years this Committee
has had more than a hundred members. It. takes as the basis for its work the
report of the Committee of Experts and it invites the governments concerned
to provide explanations concerning the discrepancies pointed out by that
Committee and the measures which they have taken or which are contem-
plated to eliminate them. Starting from the governments written or oral
replies, discussions-sometimes of a very vigorousnature-are held and the
representatives of workers and employers speak, often with force, about the
way in which the Conventions are implemented, either in their own country
or in others. The Committee summarizes its discussions and conclusions in a
report which it transmits to the Conference and which is discussed in plenary
session.
With the ever-increasing number of questions, the Conference, like the
Committee of Experts, has had to adopt a more selective method so as to be
able to concentrate its attention on the most important cases in the limited
amount of time available to it. It thus chooses, from among the observations
presented by the Committee of Experts, those which appear to be the most
important. It limits its discussions to these cases while requesting govern-
ments to reply to the other points in their next annual reports. Of the some
400 observations made by the Committee of Experts, it selects around 120
for discussion. Among the cases thus discussed, the Committee of the Con-
ference has, since 1957, drawn particular attention in its general report, on
the basis of certain criteria, to cases in which governments appeared to
encounter serious difficulties in discharging obligations under the IL0 Con-
stitution or under Conventions which they have ratified. While the Commit-
tee has always stressed that its role is not that of a court and that the
inclusion of a country on this list does not constitute a sanction but is intended
to bring to light the most serious cases with a view to helping to find positive
solutions to the problems encountered, this special list is nevertheless often
considered by the governments concerned to be a sort of moral sanction, and
inclusion on the list sometimes gives rise to lively discussions. The govern-
ments included on it generally make a special effort to remedy the situation
which led to their inclusion. In addition, the Committee has, during the last
few years, also specially drawn the Conferences attention to certain other
cases on which it has held detailed discussions.
Direct contacts with governments. The fact that the procedure of the
Committee of Experts is essentially based on documentation, and the nature
and the limited duration of the discussions in the Committee of the Confer-
ence, have sometimes given rise to protracted disputes with governments in
which there has been insufficient time to allow thorough examination of the
questions involved. A procedure for direct contacts with governments was
therefore introduced in 1968. This procedure-which follows certain princi-
ples established by the supervisory bodies-is initiated on the request or
with the agreement of the governments concerned, in cases where special
and sufficiently serious difficulties are encountered in the application of rati-
fied Conventions. It involves thorough discussion, in the country concerned,
between a representative of the Director-General of the IL0 (who may be
either an independent person or a qualified official of the ILO), and the
government authoritie-ontacts are also established with national employers
and workers organizations during these discussions. While this procedure is
under way, the supervisory bodies suspend their examination of the case
under discussion for a reasonable period (normally no more than a year) so as
to be able to take account of its outcome. From 1969 to 1979 this procedure,
intended to establish a broader and more fruitful dialogue between the IL0
and the governments concerned, was used in some thirty countries, princi-
pally in Latin America, but also in Africa, Asia and Europe, with results
which, on the whole, were distinctly positive. The procedure has also been
useful for the examination of obstacles to the ratification of Conventions and
for the supply by governments of the reports and information required by the
ILOs Constitution. In any event, these direct contacts, which are essentially
aimed at facilitating better application of ratified Conventions, in no way
limit the functions and responsibilities of the Committee of Experts and the
Conference Committee.
The principal difficulties encountered. The supervisory bodies encounter
difficulties at two different stages: that of the evaluation of national situa-
tions and that of bringing those situations into conformity with international
standards.
A first question which arises for various countries is whether, following the
ratification of a Convention, the terms of that Convention are incorporated
into national law and, if so, whether the Convention may consequently be
considered to be satisfactorily applied. In several countries, the national
Constitution provides that ratified treaties become part of municipal law-
and even sometimes take precedence over ordinary laws. The consequences
of these constitutional systems have sometimes raised problems for the su-
pervisory bodies of the IL0.17 The first series of problems are of a legal
character. Many of the provisions of international labour Conventions-indeed
most of them-are not self-executing, that is to say, are not drafted in suffi-
ciently precise terms for them to be directly applicable merely because they
have been incorporated in principle in the internal legal system of a country.
The situation may be similar when incorporation in the internal legal system
does not result from the national constitutional system but from the law
approving ratification. In these various cases, the supervisory bodies have on

several occasions drawn attention to the fact that such non-self-executing
provisions require the adoption of explicit and more concrete measures of
application, in the form of laws, regulations, etc. A similar legal problem is
that of the possible conflict between a Convention incorporated automatically
in the internal system and a more general or more specific ordinary law,
adopted previously or subsequently.
Moreover, to the legal problem is added a practical problem. Even assum-
ing that the ratified Convention is self-executing and should take precedence,
in a particular case, over a conflicting national law, it may happen that in
practice it is not so well known by judges, administrators and legal practi-
tioners, or simply by private individuals, as the national law contained in
labour codes or other widely known and accessible collections of laws. Conse-
quently, the supervisory bodies have often pointed out that, even when the
ratified Convention is considered to have abrogated tacitly the terms of a
conflicting law, it would also be desirable formally to bring the national law
into conformity with the Convention (by expressly abrogating or modifying
earlier laws or codes in respect of the points dealt with by the Convention), so
that there is no doubt or uncertainty as to the state of the law, or to take
appropriate measures so that all those concerned may be informed of the
incorporation of the Convention into municipal law and of its effect on pre-
existing law. Such measures have often been taken by governments.
Another problem relating to the evaluation of national situations is that
presented in certain countries by the application of international labour Con-
ventions by means of collective agreements. lg
However, the greatest difficulty in regard to a system of supervision founded
on documents is to be able to assess the effective application of Conventions
in practice and not merely legislative conformity. The ILOs permanent super-
visory bodies are able to form a certain impression in this connection by
indirect means. One of these means consists-and the report forms contain
special questions on this subject-in requesting governments to provide data
which will at least make it possible to form an idea of the practical application
of each Convention (judicial decisions, particulars concerning the authorities
responsible for the application of the national provisions giving effect to the
Convention, information on methods of inspection and supervision, extracts
from reports of the labour inspectorate, various statistics, such as on the
number of workers protected, the penalties inflicted, the social security ben-
efits provided, etc.). Another element of information on the practical applica-
tion of Conventions lies in the opportunity given-as indicated above-to
national employers and workers organizations to submit observations on the
application of Conventions in their country. A special question to this effect is
contained in the report forms. An effort to ensure that such organizations are
adequately informed has been made in the last few years and a distinct
increase has been noted in the number of observations of this kind.
When evaluation of national law and practice reveals discrepancies in re-

spect of the provisions of ratified Conventions, the second series of problems
for the supervisory bodies is to ensure that such national situations are
brought into conformity with the international standard. The difficulties en-
countered in this connection derive from very different causes.
Sometimes the economic and social conditions of the country in question
prevent it from fully applying a ratified Convention. This occurs, in particu-
lar, when the State concerned did not initially appreciate the obligations
which would follow from ratification of the Convention, or when a newly
independent State invokes the requirements of economic development to
explain that effect cannot be given to this or that Convention. In this connec-
tion, the supervisory bodies have taken the view that the requirements of
Conventions remain constant and uniform for all countries, while the modes
of their implementation may be different in different States. These are
international standards and the manner in which their implementation is
evaluated must be uniform and must not be affected by concepts derived
from any particular social or economic system.20 A solution to the variety of
national situations may, however, be sought within the framework of the
very terms of the Conventions. Most of the Conventions contain flexibility
clauses making it possible to take account to a certain extent of the unequal
degree of development of countries. In other cases, the solution to the
problem has been sought in the gradual application of the Convention consid-
ered. This type of difficulty often raises the problem of the balance to be
found between economic development and social development and involves
the danger that concern for economic development may result in its social and
human purpose being forgotten.
In other cases, the difficulties encountered are more simply of an adminis-
trative nature: slowness of the administration, shortage and inadequacy of
staff, lack of co-ordination and sometimes conflicts between the different
services. We see here the extent to which the protection of human rights
depends more generally on the existence of a competent, conscientious and
effective public administration.
Sometimes, again, obstacles of a political kind may prevent or delay the
adoption of the measures necessary for national law to be brought into con-
formity: these sometimes derive from domestic disturbances or difficulty in
getting the parliament to adopt the necessary texts, but the greatest prob-
lem stems from the fact that sometimes the government concerned undoubt-
edly considers-generally without wishing to admit it-that the adoption of
the measures required by Conventions such as those on freedom of associa-
tion, forced labour or discrimination, would endanger interests which in its
eyes are vital for the country or the established regime.
The difficulties of ensuring conformity may also derive from constitutional
problems, particularly in federal countries, when the measures necessary for
the application of a Convention fall within the competence of the various
constituent units of the federation. Difficulties of this kind may be avoided

when the federal government, as in Australia, before ratifying a Convention,
obtains the agreement of the authorities of the constituent units. Similarly,
certain Conventions, such as that (No. 111) concerning discrimination in
employment, of 1958, are drafted in such a way as to enable them to be
applied by means of measures taken by the federal authorities of the country.
Similar problems to those of federal countries may arise in cases where
decentralization results in the various labour collectivities of the country
having extensive powers in regard to the regulation of working conditions.
Finally, difficulty may arise in cases-which in fact are rare-where the
government concerned does not share the opinion of the supervisory bodies
as to the existence of a discrepancy between its law and the provisions of a
ratified Convention. This has sometimes led to deadlocks. The direct contacts
procedure may now help to resolve difficulties of this type.
The results obtained. The results of this supervisory machinery need to be
examined from two points of view. First of all, to what extent do govern-
ments comply with the obligation to make reports-in particular, on the
application of ratified Conventions-which are the basis of the entire system
of supervision? In the last few years, the proportion of reports received has
become established at around an average of 81 per cent at the time of the
meeting of the Committee of Experts, and 87 per cent at the time of the
meeting of the Committee of the Conference. As to the content of the re-
ports, it is highly variable. The omissions observed may to a certain extent be
made up for by consulting legislative texts and other available public docu-
ments. When a government omits to reply to questions raised by the supervi-
sory bodies, the International Labour Office has been instructed by those
bodies to contact that government immediately in order to draw its attention
to the matter, and this practice has resulted in a notable improvement in the
content of the reports. At the subsequent stage of discussions in the Commit-
tee of the Conference, almost all of the governments concerned respond to the
Committees invitation to furnish explanations concerning the discrepancies
noted.
While a dialogue is the first requirement for this system of supervision, the
effectiveness of the supervision depends ultimately on the tangible results
which it can achieve. In this connection, neither the serious problems encoun-
tered by supervision nor the generally positive results of this activity can be
denied. These results must first of all be examined from the point of view of
the application of the ratified Conventions, that is of the States compliance
with obligations which they have expressly assumed in ratifying Conven-
tions. A systematic study of the effect of this system of supervisionB has
already provided evidence of the distinctly positive results which it achieved
during the first thirty years. Moreover, each year the Committee of Experts
points out, alongside the discrepancies detected by it, some of which span a
fairly long period, cases where governments have acted on its observations
and taken measures to bring their legislation into conformity with ratified
Conventions. In 1979, it pointed out that during the previous sixteen years,
there had been more than 1,200 cases of progress of this kind, concerning
more than 150 States or territories. These cases of progress break down
approximately as follows: 23 per cent for Africa, 31 per cent for the Americas
(principally Latin America which has furnished the greatest number of ratifi-
cations in that hemisphere), 16 per cent for Asia and Oceania and the remain-
ing 30 per cent for Europe. In this connection, the Committee of Experts has
stressed the large number of developing countries figuring among those which
have furnished concrete proof of their determination fully to discharge their
obligations under IL0 Conventions. z4Among the numerous cases of progress
noted over the years, around 15 per cent concern the implementation of
Conventions relating to fundamental rights. More precisely, during the years
1964 to 1979, there were fifty-eight cases in which discrepancies noted by the
Committee of Experts in regard to freedom of association were eliminated,
eighty per cent of which were achieved in the last few years. This clearly
shows that continuity and perseverance are important aspects of the effec-
tiveness of supervision.
Alongside such easily recognizable measures, the Committee of Experts
has often emphasized that there exist numerous cases of invisible or less
apparent progress which may be directly attributed to the procedures aimed
at promoting the application of international labour standards.25 In addition,
the very existence of a system of vigilant supervision has played an impor-
tant role in that it has encouraged States to take the measures necessary for
the application of a ratified Convention so as to guard against comments by
the supervisory bodies. Official declarations made, for instance, in the Fed-
eral Republic of Germany, Australia and the United Kingdom thus reveal the
extent to which, prior to ratification of a Convention, the national authorities
take care to examine, in the light of the comments of the supervisory bodies,
the measures required to ensure the application of the text whose ratification
is being contemplated. The preventive role of supervision is also seen in the
fact that, on more than one occasion, governments have declined to make
changes in their legislation which would have been incompatible with the
terms of a ratified Convention. Such cases have confirmed the function of
Conventions as an international safety lock against possible backsliding and
as a factor contributing to the consolidation of the progress achieved.
Over and above the direct or indirect effects thus resulting from supervi-
sion when it concerns the implementation of ratified Conventions, it also
fulfils a broader function in that it bears on action taken on non-ratified
Conventions and Recommendations. The reports requested each year from
States on certain texts or groups of texts naturally lead governments to
review the possibilities of giving effect to them and of ratifying the Conven-
tions considered. The particulars provided by the Committee of Experts in
its general surveys on the import of those texts are sometimes of assistance
to governments in overcoming the difficulties encountered. The discussions

of these surveys in the Conference Committee also draw governments atten-
tion to the texts in question. It has been observed that the presentation of
reports relating to non-ratified Conventions and the ensuing examination
have on various occasions led to an appreciable number of ratifications of the
Conventions examined. This has been noted in particular in regard to the
Conventions on freedom of association.
Morover, the effect of international labour standards is not limited to cases
where the supervisory procedures are used to ensure that they are applied
by the States which have ratified IL0 Conventions. Irrespective of the for-
mal obligations arising from the ratifications of Conventions, the standards
contained in those Conventions have more generally played the role of a sort
of international common law in which governments find a customary source
of inspiration. Various monographs have revealed the influence exercised by
Conventions, ratified or not, in countries whose conditions and state of de-
velopment are very different. A representative of the Organization of Afri-
can Unity has said that practically all the Labour Codes of the African States
have as a common denominator the Conventions and Recommendations of
the ILO. Regional texts, such as the European Social Charter of 1961 and the
Arab Convention on Labour Standards of 1967, were established on the
model of IL0 standards.
(ii). CONTENTIOUSPROCEDURES
The IL0 Constitution provides for two forms of complaints which may set in
motion contentious procedures relating to the application of a ratified Con-
vention: the complaint proper and the representation.
The complaint procedure in the strict sense is provided for in articles 26 to
34 of the Constitution, and is the ILOs most formal procedure for supervi-
sion. Such a complaint may be lodged by any Member State if it is not
satisfied that any other Member is securing the effective observance of any
Convention which both have ratified. The filing of such complaints is not
subject to the complainant State or any of its nationals having suffered any
direct prejudice. It has been concluded from this that a State may have a
legal interest in ensuring the observance, in the territories of another State,
of Conventions relating to the general welfare, irrespective of any effect
upon its own nationals or on its direct or concrete interests.? The complaint
procedure may also be initiated by the Governing Body of the ILO, either of
its own motion or on receipt of a complaint from a delegate to the Interna-
tional Labour Conference. When a complaint has been filed, the Governing
Body of the IL0 may appoint a Commission of Inquiry to make a thorough
examination of the matter. Each Member State is obliged to place at the
disposal of the Commission of Inquiry all information bearing on the matter.
Following its deliberations, the Commission of Inquiry must present a report
containing its findings on all questions of fact relevant to determining the
issue between the parties, together with its recommendations as to the steps
which should be taken to meet the complaint. The governments concerned
are required to state, within three months, whether or not they accept the
recommendations of the Commission of Inquiry and, if not, whether they
wish to refer the complaint to the International Court of Justice. The decision
of the latter is final. If a Member does not comply, within the prescribed
period, with the recommendations of the Commission of Inquiry or of the
International Court of Justice, the Governing Body may recommend to the
International Labour Conference such action as it may deem necessary to
secure compliance therewith.
The complaint procedure was used for the first time in 1961 on the initia-
tive of a State, with the complaint lodged by the Government of Ghana
concerning the application by Portugal of the Abolition of Forced Labour
Convention, 1957 (No. 105) in its African territories. Some months later,
another complaint was lodged by Portugal concerning the application by
Liberia of the Forced Labour Convention, 1930 (No. 29). In 1968, this proce-
dure was initiated by workers delegates to the International Labour Confer-
ence concerning the application of Conventions No. 87 and 98 on freedom of
association by the military government which had assumed power in Greece.
In 1974, the complaint procedure was also initiated, following a resolution of
the Conference, concerning the observance by Chile of the Hours of Work
(Industry) Convention, 1919 (No. l), and the Discrimination (Employment
and Occupation) Convention, 1958 (No. 111).
The procedure followed was similar in all cases.s The Governing Body set
up Commissions of Inquiry composed of three members whom it appointed on
the recommendation of the Director-General of the ILO. These were promi-
nent persons appointed in their personal capacity. The Governing Body and
the Commissions themselves emphasized their independence and the judicial
character of their functions. Their members were called on to make the same
solemn declaration, in the same terms, as the judges at the International
Court of Justice: I will honourably, faithfully, impartially and conscientiously
perform my duties and exercise my powers.
In establishing the first Commission, the Director-General of the IL0
declared to its members, inter a&, that the task entrusted to them was that
of ascertaining the facts, without fear or favour; that they had but one master
and one allegiance-the truth; and that they were responsible to their own
consciences alone.
The task of the first Commission was, in particular, to consider whether
the complaint submitted was supported by elements sufficiently precise to
justify the continuation of the procedure. While not accepting that a govern-
ment could place responsibility on the IL0 for a complete inquiry into the
matter, the Commission considered that its role was not limited to consider-
ation of the information that might be provided by the parties, but that it
should itself take all the necessary steps to obtain complete and objective
The International Labour Organisation (ILO)
information on the questions involved, in accordance with the general in-

structions received from the Governing Body and taking into account the
public interest presented by the questions raised.
The Commissions began by requesting from the complainant detailed in-
formation and elements of proof in support of the complaint, and asked the
defendant for its observations. They also provided the governments of the
countries neighbouring the countries or territories in question and those of
countries with considerable economic relations with the said countries with
the opportunity to furnish information on questions of fact. They also gave
the same opportunity to a number of international organizations of employers
and workers and to certain other non-governmental organizations active in
the legal or humanitarian fields.
After examining that documentation, the Commissions proceeded with the
formal hearing of the parties and the witnesses in Geneva. In addition to the
witnesses proposed by the parties, the Commissions themselves established
lists of persons whom they wished to hear and requested the governments in
question to take the necessary steps for those persons to be able to appear.
These different witnesses were heard in camera by the Commissions in
Geneva, in the course of a hearing with the parties, and numerous questions
were put to them both by the members of the Commissions and by the agents
of the parties, in the latter case subject to the control of the Commissions.
After hearing the witnesses, the Commission of Inquiry considered it neces-
sary, in the Ghana v. Portugal case, to proceed to Angola and Mozambique to
form a direct impression of the situation. The visits took place on the basis of
a programme established by the Commission and accepted by the Portuguese
Government, which granted the necessary facilities. The Commission cov-
ered more than 5,000 miles, gathered information from the authorities and
the directors and staff of enterprises, and established contact with African
workers without representatives of the enterprises or the authorities being
present. The Commission itself decided where it wished to go and chose the
workers whom it wished to question.
In the Chile case, the Commission of Inquiry, which was also fulfilling the
functions of the Fact-Finding and Conciliation Commission on Freedom of
Association, made an on-the-spot examination of the situation, as will be seen
below.
In the Portugal v. Liberia case, the Commission of Inquiry did not consider
it necessary to make an on-the-spot investigation. The reasons for this were,
on the one hand, that the complaint did not involve any sufficiently precise
allegations of fact and, on the other, that in the course of the procedure, the
government in question modified its legislation. In the Greece case, because
the government withdrew its co-operation from the Commission on account
of its objections to the hearing of a witness presented by the complainants,
the Commission decided not to pursue further the question of a possible visit
to Greece, which had been originally contemplated. On the basis of the in-
Nicolas Valticos
formation and testimony received, it reached a series of conclusions bearing

both on the provisions of trade union legislation and on certain more general
civil liberties which were regarded as necessary for the effective exercise of
trade union rights.
In their reports, adopted unanimously, the Commissions, after noting that
a number of measures had been taken following the filing of the complaints in
order to eliminate discrepancies, addressed a number of recommendations to
the governments concerned. These recommendations were, in each case,
accepted by the two parties who subsequently took various legislative and
administrative measures with a view to giving effect to them to a lesser or
greater extent.2g
In these different cases, the Commissions of Inquiry requested that the
tions be regularly informed, through the governments annual reports, of the
measures taken to give effect to the recommendations which they had made.
A link was thus established between the occasional complaint procedure and
the regular supervision founded on the examination of reports, the latter
following up from the conclusion of the complaint procedure. And in fact, the
Committee of Experts has closely followed the extent to which the govern-
ments concerned have given effect to the recommendations of the Commis-
sions of Inquiry, and the Conference Committee has regularly discussed the
matter with the representatives of those governments.
From these procedures a few major characteristics emerge: the indepen-
dent character of the body responsible for examining the complaints, the
measures taken to ensure the objectivity of the procedure, the thorough-
going character of the investigations made, the principle according to which
such complaints give rise to proceedings in the public interest and by virtue
of which the Commissions themselves must take steps to obtain complete and
objective information, and lastly the concern to ensure continuity of supervi-
sion after the end of the complaint procedure. These bodies are assisted in
their functions by a senior official of the Organisation, who is appointed as the
representative of the Director-General and recognized as the intermediary
between the independent Commissions and the parties. They also have at
their disposal a qualified secretariat, made available to them by the Director-
General. Finally, as regards the effect of these procedures, it is significant
that, in these different cases, legislative or other measures were already
being taken by the governments in question when the proceedings were
under way and that, subsequently, the parties to the complaints accepted the
recommendations of the Commissions of Inquiry, the implementation of which
has since been regularly followed by the supervisory bodies.
The complaint proceedings are manifestly of a quasi-judicial nature, their
ultimate purpose being to determine whether a situation is in conformity
with the international obligations assumed. This is stressed by the member-
ship of the Commissions of Inquiry, the procedure which they follow and the
fact that their conclusions may be the subject of an appeal to the Interna-
tional Court of Justice. The conclusions of the Commissions of Inquiry have a
binding character, as emerges from the fact that the Conference, on the
recommendation of the Governing Body, may recommend such action as it
may deem wise and expedient to secure compliance with the recommenda-
tions of those Commissions. This being so, the Commissions of Inquiry do not
limit themselves to stating the law and to noting the extent to which the
State in question is meeting its international obligations. They are also called
upon to make recommendations for the purpose of remedying the shortcom-
ings noted in this connection. The detailed and constructive nature of the
recommendations made derives from a concern to obtain a positive solution to
the problems encountered. In the final analysis, it is through persuasion
rather than the imposition of mandatory measures that the Commissions of
Inquiry seek, while basing themselves on respect for legal obligations, to
obtain the implementation of the standards concerned.
The representation procedure is the second type of legal proceedings pro-
vided for by the IL0 Constitution (articles 24-25). Representations may be
made by employers and workers organizations against a State which, in
their opinion, has failed to secure in any respect the effective observance
within its jurisdiction of any Convention to which it is a party. This type of
complaint is governed by specific rules of procedure which provide essen-
tially that the representation shall be examined first by a Committee of three
members, and then by the Governing Body of the ILO.
It was in connection with a representation of this type that the Governing
Body established, in 1938, a principle which has been confirmed since in respect
of various other procedures and according to which the fact that the complain-
ant organization withdraws its representation does not give rise to the auto-
matic withdrawal of the case. This principle was inspired by the fear of pressure
being applied on the complainant organization and also by the fact that the
proceedings are recognized to be of public interest (see also below in connection
with the Fact-Finding and Conciliation Commission on Freedom of Association).
Only thirteen representations have been referred to the ILO, of which six
were during the last twenty-five years; five of these were made by workers
organizations and one by an employers organization. This limited number is
no doubt due to the existence of other procedures whereby employers and
workers organizations are able to put forward their points of view (reports
on the application of Conventions and special procedures in regard to free-
dom of association). However, representations relating to the important ques-
tion of discrimination in employment on the basis of opinion were submitted
in 1977 and 1978 and this procedure is therefore still considered useful.
(b). Special machinery for the protection of freedom of association

In view of the importance of freedom of association, a special procedure in
this field was established by the IL0 in 1950 following an agreement with the
United Nations Economic and Social Council which, by its resolution 277 (X)
(1950) on trade union rights (freedom of association) formally accepted, on
behalf of the United Nations, the ILOs services in this matter.
This procedure supplements the procedures of general application de-
scribed above, which of course apply to the Conventions on freedom of asso-
ciation as they do to the other Conventions of the ILO. It is founded on the
submission of complaints which may be made either by governments or by
employers or workers organizations. The latter case is the most frequent.
An important characteristic of this procedure is the fact that such complaints
can be made even against States which have not ratified the Conventions on
freedom of association and which therefore have not assumed any formal
undertakings relating to them. As far as such States are concerned, this
special machinery is based on the fact that the IL0 Constitution, to which
those States have subscribed in becoming Members of the Organisation,
affirms the principle of freedom of association. It has therefore been consid-
ered that this principle, which has even been regarded as a sort of customary
rule above the Conventions, should be observed by Member States by virtue
of their belonging to the Organisation and that, even if the ILOs more
specific standards in the matter of freedom of association cannot be imposed
on States that have not ratified the corresponding Conventions, the Organisation
may promote the implementation of those constitutional principles by such
means as investigation and conciliation.
The machinery thus established comprises two different bodies: the Com-
mittee on Freedom of Association and the Fact-Finding and Conciliation
Commission on Freedom of Association.
(i). THE COMMITTEE ON FREEDOM OF ASSOCIATION"
This Committee, which has acquired world renown, is appointed by the Gov-
erning Body of the IL0 from among its Members, and comprises nine Mem-
bers (three Government, three Employers and three Workers). Owing to
the quasi-judicial nature of its functions, its procedure is accompanied by
various measures whose purpose is to ensure its impartiality. Continuity has
been ensured, in particular, by the fact that, since it was set up in 1951, it has
had but two Chairmen: Paul Ramadier, former Prime Minister of France,
during the first ten years; and, since 1961, Roberto Ago, professor of inter-
national law at the University of Rome, former Chairman of the Governing
Body of the ILO, and more recently, judge at the International Court of
Justice. The Committee generally conducts its business on the basis of docu-
ments, but in several cases independent persons representing the Director-
General of the ILO, accompanied by an official of the ILO, have made on-the-spot
investigations, at the request or with the agreement of the government
concerned, to establish the facts, meet representatives of the government,
the employers and workers concerned (sometimes including trade unionists
under detention), and submit a report to the Committee. Thus, the direct
contact procedure, mentioned above, is tending to be increasingly used in

this field, at the request or with the agreement of the governments con-
cerned (Jordan in 1974, Uruguay in 1975 and 1977, Bolivia in 1976 and Argen-
tina, Chile and the Dominican Republic in 1978).
The Committee was originally intended to be a body responsible for mak-
ing a preliminary examination of complaints and recommending to the Gov-
erning Body of the IL0 whether some of them merited being referred to the
Fact-Finding and Conciliation Commission, which is discussed below. When
it was subsequently found that there were difficulties in the way of referring
them to that Commission, the Committee on Freedom of Association itself
proceeded to examine the substance of complaints and submitted to the Gov-
erning Body detailed reports with proposed conclusions and, when necessary,
suggested recommendations to be made to the governments concerned. Most
of the time, the Governing Body has approved these recommendations with-
out discussion.
Close to 1063 cases have been referred to the Committee since it was
created. These have concerned widely varied aspects of freedom of associa-
tion: legislation alleged by the complainants to be contrary to the principle of
freedom of association, measures taken by governments, such as the dissolu-
tion of trade unions, the arrest of trade union leaders, interference in trade
union affairs, etc. In examining the cases referred to it, the Committee has
taken as its basis the general principles of freedom of association and has
been guided by the provisions contained in the Conventions adopted in this
field. In delivering its opinions in regard to hundreds of cases, it has been led,
as was pointed out above, gradually to build up a considerable body of case-
law which has often related to various civil liberties on which depend the
effective exercise of trade union rights, such as the right of assembly, free-
dom of expression, the right to personal security, etc. The Committee has
thus emphasized on several occasions the importance which, in all cases,
including those where trade unionists are accused of political or criminal
offences considered by the government to have no relation to their trade
union activities, it attaches to the principle of prompt and fair trial of the
persons in question by an impartial and independent judicial authority.
The Committee has more generally taken the attitude that, in view of the
nature of its responsibilities, it cannot consider itself bound by the rule relat-
ing to the exhaustion of domestic remedies which applies, for instance, in
cases of international arbitration. However, whenever the case referred to
it is pending before an independent national judicial body whose proceed-
ings afford appropriate guarantees and when it considers that the decision
to be reached is likely to furnish it with additional elements of information,
the Committee suspends examination of the case for a reasonable period
pending its being in possession of that decision, if no further prejudice will be
caused by such delay to the party whose rights are alleged to have been
violated.
Nicolas Valticos
The effect of the activity of the Committee on Freedom of Association has

been very uneven. In several cases, the States concerned have taken account
of the Committees recommendations by amending legislation, by releasing
imprisoned trade union leaders or by taking measures of clemency. In other
cases, these recommendations have had no effect. Yet in other cases, while
no result has been obtained in the short run, there remains the possibility of
an effect being produced in the longer term. As the effectiveness of interna-
tional procedures hinges to a large extent on the continuity and perseverance
of that action, the recommendations of the Committee on Freedom of Associ-
ation are, in the case of States that have ratified the Conventions on freedom
of association, brought to the attention of the Committee of Experts on the
Application of Conventions and Recommendations in order that that Com-
mittee may take steps to be regularly informed of the matter. For States that
have not ratified those Conventions, the procedure of the Committee on
Freedom of Association has, for some years, made it possible periodically to
ascertain the effect given by governments to the recommendations made to
them.
In addition to specific cases where the Commmittees recommendations
have been acted on, this procedure has resulted in the establishment, in the
field of freedom of association, of a general accountability for governments-
and even a sort of habit for them to report on the measures taken by them in
that field. This obligation has also undoubtedly played a preventive role in
respect of the action of the public authorities. Finally, the working of the
procedure has helped to gain wider recognition for the international value of
the principles of freedom of association.
(ii). THE FACT-FINDING AND CONCILIATION COMMISSION
This Commission3 constitutes the formal body set up in 1950 at the time of
the establishment of the machinery for the protection of freedom of associa-
tion. It is made up of independent persons appointed by the Governing Body
of the IL0 on the recommendation of the Director-General of the ILO. En-
trusted with the task of examining complaints regarding violations of free-
dom of association, the Commission has essentially a fact-finding role, but it
may also examine, in conjunction with the government concerned, the ques-
tions referred to it in order to settle difficulties by way of agreement. In
principle, a case can be referred to the Commission only with the consent of
the government concerned. For several years, this proved to be the stumbling-
block of the system. The first governments to which the request was made
refused to give their consent, and it was consequently decided to give wide
publicity to those cases. In 1964, the Government of Japan, which had not at
the time ratified the Freedom of Association Convention, 1948 (No. 87), gave
its consent for a case concerning trade union rights in the public sector in
Japan to be referred to the Commission. The procedure followed was similar
to that for formal complaints described above: three independent members of
the Commission were appointed to examine the case; information was re-
quested from the parties and from international and national employers and
workers organizations; and the Commission heard numerous witnesses in
Geneva, some of whom were designated by itself and others by the parties, It
then went to Japan where it had private discussions with representatives of
the complainant organizations and representatives or members of the gov-
ernment. During these discussions, the Commission submitted certain pro-
posals to the two parties for examination. Before the end of the procedure
these proposals were accepted and it was thus that the Government of Japan
ratified Convention No. 87 and that exchanges of views began between au-
thorities and trade unions. Following this, the Commission formulated its
conclusions and a series of very detailed recommendations in the final report
which it submitted in July 1965.34
The Governing Body of the IL0 took note of that report in November 1965
and the representatives of the Japanese Government and the complainant
organization (the Japanese General Council of Trade Unions) indicated that
they accepted the report of the Commission as a basis for the progressive
settlement of the points at issue. Admittedly, the difficulties have not van-
ished and the Freedom of Association Committee has again had to examine
various subsequent complaints in this field, but the recommendations of the
Commission constituted an important stage in the history of industrial rela-
tions in the public sector in Japan and provided one of the bases for the
dialogue which has been established since, with its ups and downs, between
the public authorities and the trade union organizations concerned.
In January 1965, a second case was referred to the Fact-Finding and
Conciliation Commission, the Government of Greece at that time having
spontaneously given its consent. The procedure began in the same way as in
the previous case, but during the consideration of the case the complainant
organization (the Greek Confederation of Trade Unions) informed the Com-
mission of its desire to withdraw its complaint. The Commission decided to
close the procedure only after making sure, by hearing all the parties con-
cerned, that the withdrawal of the complaint was not the result of pressure
being applied.
In 1973, a case involving Lesotho, which is not a member of the ILO, was
referred to the Fact-Finding and Conciliation Commission in pursuance of a
decision by the United Nations Economic and Social Council, under the terms
of the agreement between the United Nations and the ILO. After the negoti-
ations, the Chairman of the Commission, accompanied by a member of the
Secretariat, went to the country, with the agreement of the Government, in
January 1975, and had conversations with the authorities and trade union
leaders, one of whom was under detention. The Commissions report was
communicated by the Governing Body to the United Nations in the middle of
1975.
One of the most important cases entrusted to the Commission concerned
Chile. Following the events of September 1973, several complaints from

trade union organizations were submitted to the IL0 and, on the recommen-
dation of the Committee on Freedom of Association, after a first examination
of the case, the Governing Body of the IL0 decided, in June 1974, to refer the
matter to the Fact-Finding and Conciliation Commission, the government
having consented thereto. The Commission was composed of three indepen-
dent persons under the chairmanship of a former President of the Interna-
tional Court of Justice. It was also constituted as a Commission of Inquiry
under article 26 of the ILOs Constitution, with responsibility for the exami-
nation of other complaints relating to ratified Conventions. The Commission
held a session in Geneva, in October 1974, in the course of which it heard
witnesses put forward by the principal complainants (the three major workers
organizations) and by the government. In November-December 1974 it vis-
ited Chile, after arrangements had been made to ensure the necessary facili-
ties and guarantees (possibility of meeting freely and privately any person
that it might wish to hear with the guarantee that the persons encountered
would not be subjected to any coercion, sanction or punishment on that
account). In Chile the Commission visited various regions in the country,
went to many establishments and had discussions with the authorities, and a
variety of other persons including numerous trade union leaders (some of
whom were under detention), dismissed workers, teachers, lawyers and priests.
At the end of its visit, it transmitted to the government certain preliminary
observations and recommendations. The Commissions final report was com-
pleted in April-May 1975.35This report bore both on trade union matters and
on problems of human rights and civil liberties which are closely linked with
the effective exercise of trade union rights. During the discussion of the
report, in May 1975, the representative of the Government of Chile, while
formulating certain observations, declared that the Government accepted the
recommendations contained therein. The Governing Body appealed to the
Government to give effect to those recommendations and on several occa-
sions since then it has requested it to make detailed reports- which are
examined by the Committee on Freedom of Association and by the Govern-
ing Body-on the measures taken. In June 1975, the International Labour
Conference also adopted a resolution along the same lines. Since then the
matter has been followed at regular intervals by the organs of the ILO.
By its nature, the special machinery for the protection of freedom of associa-
tion just described makes it possible, in several respects, to supplement the
general procedures for supervision which apply to all the Conventions. Since
it is founded on complaints, it provides a means for investigating issues-in
particular questions of fact-which may have escaped supervision founded on
the examination of governments reports. Since it can be brought into play
even in regard to countries which have not ratified the Conventions on free-
dom of association, it makes it possible, as far as such countries are con-
cerned, to deal with questions which could have been examined only with
difficulty and in a less thorough and less rapid manner, in the framework of
the general procedures. Since it is based on general principles in regard to
freedom of association rather than on specific provision of the Conventions in
that field, it possesses greater flexibility and may more easily be adapted and
even extended to different situations. And because the Committee on Free-
dom of Association meets three times a year, it enables questions to be
examined more rapidly than in the framework of annual or biennial reports
from governments.
(c). Special inquiries and studies

Independently of the procedures for supervision as such, more or less far-
ranging inquiries and studies have been carried out in various fields relating
to human rights.
(i). FREEDOM OF ASSOCIATION
The majority of these investigations and studies have been concerned with
freedom of association. In certain cases they have been entrusted to missions
of IL0 officials which have gone to particular countries at the invitation of
the government concerned in order to gather complete and impartial infor-
mation on the trade union situation which had been called into question at the
international level (for instance in Hungary, as early as 1920, and in Venezu-
ela in 1949). Sometimes the study, while being concerned with all the labour
problems in the country, has to a certain extent been the result of complaints
concerning the trade union situation (as in Greece in 1947). In other cases,
the study has been of a more general scope, in the sense that it has dealt with
all of the Member States or with a given number of them. Thus, in 1955, a
Committee composed of independent persons under the chairmanship of Lord
McNair, former President of the International Court of Justice, was instructed
to examine the independence of the employers and workers organixations of
all Member States of the ILO. After the Committee had submitted its report,
the Governing Body set up, from 1958 to 1963, machinery to establish facts
relating to freedom of association in Member States. In contradistinction
with the procedures for the purpose of considering a complaint, the object of
these studies was to investigate the de facto situation, and they were en-
trusted to the International Labour Office itself. Missions composed of IL0
officials thus went on the invitation of the governments concerned, to the
U.S.A., U.S.S.R., United Kingdom, Sweden, Malaya and Burma. They es-
tablished reports which, without seeking to make a judgment concerning the
situations themselves, were intended to provide a comprehensive picture.
These investigations made it possible for a clearer view of the situation in the
various countries concerned to be obtained.
More recently, in 1967, following a request from the Government of Spain,
which had not ratified the Conventions on freedom of association, the Gov-
erning Body of the IL0 set up a study group (composed of independent
persons) to examine the labour and trade union situation in Spain. This
was not a procedure based on complaints, although complaints regarding the
trade union situation in Spain had previously been examined by the Commit-
tee on Freedom of Association. Instead, the study was concerned with the
situation existing in a country, irrespective of any international obligation
assumed by that country and of any complaint initiating the procedure. It had
been stipulated by the Governing Body of the IL0 that the study was to be
carried out in the light of the principles set forth in the IL0 Constitution. In
this connection, the group pointed.out in its report that it had been guided in
particular by the principle according to which freedom of expression and of
association are essential to sustained progress which, since it is contained in
the Declaration of Philadelphia, forms part of the IL0 Constitution. The
study group also pointed out that, while it did not constitute a Commission of
Inquiry or a Fact-Finding and Conciliation Commission and while it did not
possess judicial powers, its responsibilities had to be discharged in a judicial
manner. Its members therefore had the duty to record their findings without
fear or favour and they could not limit themselves to a factual description of
the existing situation but had to assess its relationship with the principles of
the IL0 and appraise the possibilities of future evolution.
Mutatis mutandis, the procedure was modelled on that followed by the
Fact-Finding and Conciliation Commission and by the Commissions of In-
quiry. A specific preliminary agreement between the Director-General of the
IL0 and the government established all the necessary guarantees for the
group to be able to discharge its task in complete independence and objectiv-
ity. These conditions provided, inter alia, for the group to have complete
freedom of movement, for it to be entitled to undertake private talks and
interviews at which no witness would be present, and for guarantees that no
person who would be in contact with the group might for that reason be
subjected to coercion, sanctions or punishment at any time.
After hearing representatives of the government and of the three major
international workers organizations in Geneva, the group went to Spain in
March 1969. There it divided its time between, on the one hand, official visits
and consultations, in particular with ministers and senior officials, the high-
est judicial authorities and employers and workers representatives from the
Spanish trade union organization and, on the other hand, private interviews
with persons ranging from ecclesiastical authorities and professors of law to
public figures belonging to the opposition and trade unionists in prison. The
final report of the grou~~ contains a detailed description of the situation in
Spain and also certain observations concerning future prospects. It concluded
in particular that Spaniards alone could determine what that situation would
be in the future, but that Spains place in the world will be significantly
influenced by her attitude towards world standards. The study group pointed
out in this connection the unequivocal universal and regional standards
which exist in labour and trade union matters and in respect of civil liberties-
standards which, it specified, are contained in the International Covenants

on Human Rights, in the European Social Charter and in the international
labour Conventions and in particular those concerned with freedom of associ-
ation. These standards, the group added, do not impose contractual obliga-
tions on any State, unless it has ratified the appropriate instrument, but no
State can escape comparison with them and evaluation of the measure of
freedom which it secures to its people on the basis of the comparison.
The Governing Body of the ILO, which took note of this report in Novem-
ber 1969, also decided to adopt measures to ensure its widespread diffusion,
and the report became an important element in the discussions which fol-
lowed concerning Spanish trade union legislation. More recently, with the
change in the political situation in Spain, the principles of the IL0 and the
Report of the Study Group were clearly taken into consideration when new
trade union legislation, following rather closely the standards of Convention
No. 87, was adopted in April 1977, and the Convention itself was ratified by
Spain a few days later.
(ii). FORCEDLABOUR
In respect of forced labour, special procedures of inquiry and study have

been used, since as early as 1921, in collaboration with the League of Na-
tions, and from 1926 onwards, through the establishment of a Committee of
Experts on Indigenous Labour. After the Second World War, the work of a
Special Committee on Forced Labour, set up in 1951 by the IL0 in conjunc-
tion with the United Nations and continued to 1959 by a Committee of Forced
Labour set up by the International Labour Office, led ixter alia to the adop-
tion of the Abolition of Forced Labour Convention, 1957 (No. 105).
(iii). DISCRIMINATION
In respect of discrimination, the Governing Body of the IL0 approved in

1973, as an experimental measure, a formula for studies of national situations
in regard to discrimination in employment in order to facilitate the implemen-
tation of the Discrimination (Employment and Occupation) Convention, 1958
(No. 111). Such studies, which would necessitate more or less extensive
contacts in the country concerned, could take place either at the request of
governments that wish to obtain an impartial, outside opinion, or with the
consent of the government concerned and under certain conditions, at the
request of employers or workers organizations or the government of an-
other country whose interests would be affected. The studies would be car-
ried out by an IL0 official or an expert or group of experts, and their organization
and the conditions under which they would be carried out would be deter-
mined by the Director-General of the IL0 in agreement with the government
concerned, which should always provide the appropriate guarantees.
Thus, on an ad hoc basis, a mission of IL0 officials visited Israel and the
occupied territories in 1978, 1979 and 1980 to consider the question of equal-
ity of opportunity for, and treatment of, the Arab workers of those territo-
ries. The missions findings and suggestions were contained in reports submitted
to the International Labour Conference.
(d). Education and training measures

Implementation of the ILOs standards is also sought through various educa-
tional and training measures, such as the workers education programme
established some years ago by the ILO. More recently, a programme of
practical action was launched in respect of the prevention of discrimination in
employment. Finally, the Office organizes, generally each year, regional semi-
nars which bring together national officials and officials of the IL0 and make
it possible, in particular, to find solutions to the difficulties encountered in
the application of international labour standards, in particular in respect of
human rights.
(e). Technical co-operation and the World Employment Programme

The IL0 Constitution provides, in its article 10, para. 2 (b), that the Office
shall accord to governments at their request all appropriate assistance within
its power in connection with the framing of laws and regulations on the basis
of the decisions of the conference. Since 1950, the technical co-operation
accorded to the different countries by the IL0 in conjunction with the United
Nations has developed substantially. 38 It may sometimes constitute a means
of assisting governments to attain the level of the standards established in
various international labour Conventions, thus enabling them either to ratify
some of those Conventions or to eliminate the discrepancies noted in the
application of ratified Conventions. International labour standards thus serve
as guidance to the technical co-operation experts in their task, and are also
taken into consideration by the services of the International Labour Office
when governments request them-and such cases are numerous and frequent-
to assist them in framing or amending their labour and social security legislation.
With regard more especially to the right to work, in 1964 the IL0 launched
the World Employment Programme, which is based on the standards con-
tained in the Convention and Recommendation (No. 122) on Employment
Policy, of 1964, and which is intended to assist countries to attain the highest
level of productive employment possible. In the framework of this programme,
employment strategy missions organized by the IL0 have gone, at the re-
quest of the governments concerned, to many countries in Africa, America
and Asia3 and have submitted recommendations to the governments in question.
(i). PRINCIPALCHARACTERISTICSOFTHE SYSTEMOF SUPERVISION
Founded in the main on specific texts of the IL0 Constitution-which has

provided it with a firm foundation-the ILOs system of supervision has not
however been strictly limited by those texts. These have served as starting
points for progressive developments. Dynamism is thus the first characteris-
tic of this system which, starting from a solid foundation, has been constantly
developing.
This process of change has followed two directions which, although juridi-
cally separate from each other, pursue a common aim. Supervision was first
of all aimed at ensuring compliance with the obligations assumed by States by
virtue of their having ratified Conventions. It also aimed at promoting the
implementation of IL0 standards irrespective of any formal obligation of this
type. In both cases what is involved is the activity of an international organiza-
tion which, by separate procedures, seeks to attain the objectives assigned
to it.
This accounts for another characteristic specific to the ILOs system of
supervision, namely its diversity. Seeking maximum effectiveness, this sys-
tem comprises, as has been seen, a great variety of procedures intended to
meet different situations and needs: automatic regular supervision founded
on the examination of governments reports, legal cases founded on the submis-
sion of complaints, conciliation procedures, objective studies of situations,40
etc. In their diversity, these procedures have a complementary character,
being supported by each other and often following on from each other.
As different as they may be, the procedures of the IL0 present a number
of common features, from the point of view both of their constituent elements
and of the rules and principles on which they are modelled.
Generally speaking, the ILOs system is composed of four elements. First
of all, any system of supervision presupposes the existence of a secretariat
capable of assisting its organs in an often complex and arduous task. The
organs of the IL0 thus have at their disposal a qualified secretariat of off-
cials belonging to the International Labour Office, which carries out an objec-
tive and thorough analysis of all the documentation available and assists
those organs in their work and in the formulation of their conclusions.41
Apart from that, the essential element of supervision is the body responsi-
ble for determining whether national law and practice are in conformity with
international standards, and sometimes for ascertaining facts. As a general
rule it is composed of independent persons. This is a fundamental principle of
the ILOs system of supervision. It may even be said that it is the key to
success in the matter of international supervision.42 Only such a guarantee of
impartiality is capable of inspiring the confidence of the governments con-
cerned, the complainants, the international organization as a whole and,
more generally, public opinion-and of giving to the conclusions of those
bodies the authority which may lead to their being accepted.
The members of these bodies are therefore nominated by the Director-
General of the IL0 (and not by governments) and appointed, in their per-
sonal capacity, by the Governing Body of the ILO. The independence which
should characterize such persons concerns primarily their functions (they
should not hold a national office which links them too closely to the adminis-
tration of a State). The other qualifications required43 are, generally, sound
legal training, high-level experience of public affairs and national and inter-
national problems and, lastly, more personal qualities of judgment and char-
acter, and in particular integrity and authority likely to inspire confidence
and respect.
When the independent body has concluded its examination, a third element
enters into play, namely the policy-making organs of the IL0 (Governing
Body and International Labour Conference), within which are represented
the various interests involved. The conclusions of the independent body are
laid before these organs and they examine the measures required by those
conclusions, seek with the representatives of the governments concerned a
solution to the problems encountered and give to the supervision process the
backing of the Organisations weight. This phase is especially useful in that,
on account of the tripartite structure of the ILO, those non-governmental
elements constituted by employers and workers organizations participate in
it on an equal footing with governments. Being able, on account of that
structure and the established procedures, to file complaints, furnish elements
of information and comment upon governments reports, the representatives
of employers and workers organizations, through their participation in the
tripartite organs, give a particular dynamism to the ILOs system of supervision.
Finally, a fourth element, less apparent but sometimes decisive, is that
which may be described as diplomacy in the broad sense of the term. In
affairs which are sometimes complex and delicate, it is often useful for there
to be, alongside or in addition to official procedures and the tensions which
accompany them, an effort at persuasion and explanation discreetly directed
at the parties concerned, under the responsibility of the Director-General of
the ILO, with a view to facilitating the search for solutions. It is thus that, in
the procedures for investigation, conciliation or on-the-spot studies, the in-
dependent organs have had the constant co-operation of a senior official
responsible not only for advising them in regard to matters concerning the
Organisation, but also for: serving as an intermediary between the indepen-
dent organ and the parties, or the government concerned; eliminating mis-
understandings; and maintaining the degree of co-operation necessary, without
affecting the quasi-judicial mission of the supervisory body. The direct con-
tacts recently introduced stem from a similar concern.
Thorough-going work by the secretariat, objective examination by an in-
dependent body, discussion within a representative tripartite body and dis-
creet diplomacy are thus the four essential elements of the supervisory
machinery. Each of these elements has a clearly defined function. They com-
plement each other, though without merging.
In the working of this machinery, certain principles and certain rules of
procedure deserve to be noted more specifically. In the first place, in order to
observe complete objectivity and in conformity with the old adage auditur et
altera pars, various rules of procedure give to the parties concerned, in
particular the States involved, every opportunity to put forward fully their
points of view.
A second feature to be noted is the thorough and precise character of the
supervisory operations, essential for not only the effectiveness but also the
authenticity of supervision. For genuine supervision cannot be made with a
superficial examination and vague conclusions. The reports and other ele-
ments of information requested from governments must therefore be estab-
lished on the basis of precise forms; the supervisory bodies, with the assistance
of their secretariats, make an in-depth examination of the situations considered-
without limiting themselves solely to the data furnished by governments-
and their conclusions and recommendations are formulated with precision
and sometimes in detail.
In the third place, an important factor in the effectiveness of the system is
its continuity. Thus the Committee of Experts is periodically informed of the
state of matters which have not been settled and returns to them at regular
intervals so long as they remain outstanding.
A last detail to be noted concerns the private or public character of the
various phases of the procedures. Some of these phases (deliberation of quasi-
judicial organs, hearings of witnesses, discreet diplomacy) are of a private
character, so as to allow of a calm and objective examination, guard against
publicity and endeavour more easily to obtain the necessary action by the
governments involved. Other phases (reports and conclusions of the various
supervisory bodies, discussions within the Governing Body and the Interna-
tional Labour Conference) are, on the contrary, of a public character, and
special publicity is sometimes given to particular cases of lack of co-operation
on the part of governments and of persistent discrepancies. Publicity at these
stages and in such cases is an element of information for the Organisation and
its Members, which is normal for such procedures in the public interest, and
even a means of pressure upon the governments concerned, when more
discreet measures have not produced results.
However, over and above the various rules of procedure, there has emerged
from the working of the various supervisory bodies what has been called the
unwritten wisdom of the ILO, that is to say a general spirit44 whose domi-
nant features include scrupulous exactitude in the establishment of facts,
strict objectivity in the assessment of situations, firmness of the principles
and obligations involved, and courage, together with a sense of proportion
and reality, and lastly the desire to arrive, by means of constructive dialogue,
at positive solutions.
(ii). THEPLACEOFTHEIL~SYSTEMINTHEINTERNATIONAL
PROTECTIONOFHUMANRIGHTS
Having been in the vanguard of efforts to ensure the international protection

of human rights, 45the ILOs system of supervision is not concerned only with
the implementation of the standards for which the Organisation has direct
responsibility. It also has a more general significance for the protection of
human rights as a whole.
This is true first of all on account of the value of the IL0 system as a model
for other systems for the implementation of human rights.46 There has often
been speculation as to what extent the procedures of the ILO, which have
opened up new avenues for international supervision and which are among
the most advanced and the most effective in existence, might also be used in
the framework of other international organizations. The question has been
raised, in the course of the years, by eminent jurists, particularly by some of
those who, having been members of the Committee of Experts, have had
closer knowledge of that system of supervision, such as Georges Scelle,47
Lord McNair, 48who was President of the International Court of Justice, and
the former Chief Justice of the United States, Earl Warren.4g The question
continues to be regularly raised, whether in respect of the entire system of
supervision of the ILO,5o or in respect of particular rules such as those
relating to the submission of Conventions to the competent authorities or the
transmission of reports on non-ratified Conventions. Thus, for example, Pro-
fessor Roberto Ago has raised the question whether these procedures might
not be extended to Conventions adopted under the auspices of the United
Nations,51 or in relation to procedures for the protection of freedom of
association.52
There is no doubt, however, that the procedures of the IL0 have had a
greater or lesser influence on the system of supervision established in other
organizations, be they organizations belonging to the United Nations family
or regional organizations, such as the Council of Europe.5 Thus, in such
organizations is to be found the system of periodic reports and of recourse to
bodies composed of independent members or of persons who at least sit in
their individual capacity. This approach is being increasingly accepted, albeit
in sometimes limited and imperfect form. A place is sometimes accorded to
conciliation procedures and a certain role is sometimes granted to employers
and workers organisations. Nowhere else, however, are to be found com-
bined all the characteristics which give the ILOs system of supervision its
force. This stems, at least in part, from the fact that that system was estab-
lished in the framework of the specific constitutional provisions and structure
of the IL0 and that these cannot be transposed, as they stand, to organiza-
tions which have neither the same rules nor the same traditions. The fact
nonetheless remains that some of the techniques and principles of the IL0
could still exercise greater influence in the development of other systems of
supervision.
In addition to its value as a model, the IL0 system also plays a more
extensive role by virtue of the co-operation which has been established with
other supervisory systems set up by other organizations, which have also
adopted instruments relating to human rights. One of the objects of this
co-operation is to avoid contradictions between the measures taken by the

supervisory bodies responsible for the implementation of different instru-
ments containing similar provisions. Such co-operation is sometimes provided
for in the international text itself.
Thus the International Covenant on Economic, Social and Cultural Rights
of 1966 provides (articles 16 and 18) that the specialized agencies shall receive
copies of the reports of governments bearing on questions within their com-
petence and that arrangements may be concluded in order for these agencies
to submit reports bearing inter alia on .the decisions of their competent
bodies concerning the implementation of the provisions of the Covenant fall-
ing within the scope of their activities. The specialized agencies may also
submit observations on any recommendation made by the Human Rights
Commission (article 20). Since the great majority of the provisions of this
Covenant concern questions on which the IL0 has adopted numerous de-
tailed Conventions, the ILOs supervisory bodies may play a considerable
role in the effective implementation of the Covenant. Participation by the
specialized agencies is also provided for, though in less precise terms, by the
International Covenant on Civil and Political Rights (article 40, para. 3).
In other cases, co-ordination is effected through administrative arrange-
ments for reciprocal representation and exchange of information, as is the
case between the IL0 and Unesco, regarding the application of parallel conven-
tions by those organizations relating to discrimination in employment and in
education. Similar co-ordination has been developed in respect of the imple-
mentation of the United Nations International Convention on the Elimina-
tion of All Forms of Racial Discrimination.
Finally, certain texts of regional institutions, such as the Council of Eu-
rope, expressly provide for measures of co-ordination. The European Social
Charter, which was adopted in 1961 with the technical assistance and on the
basis of the standards of the ILO, thus provides for participation, in a consul-
tative capacity, by an IL0 representative in the deliberations of the Commit-
tee of Independent Experts responsible for supervising its application. Even
closer co-ordination has been worked out under the European Code of Social
Security (Minimum Standards) Convention, 1952 (No. 102). The Code pro-
vides that a competent body of the IL0 will be consulted in the first instance
concerning the reports of the Contracting Parties and that its conclusions will
be communicated to the Council of Europe.
NOTES
1. Cassin, Rend, Lhomme, sujet de droit international, et la protection des droits de
lhomme dans la soci& universelle, in La technique et les pmncipes de droit public,
mBlanges en lhonneur de Georges Scelle, Vol. 1, Paris, 1959, p. 68.
2. ILO, Geneva, Apartheid in Labour Matters (1966), pp. 3-52.
3. See in particular Jenks, C. Wilfred, Human Rights and International Labour Stan-
dards, Stevens and Sons, London, and Praeger, New York, 1960;Valticos, N., Les normes
Nicolas Valticos
de lorganisation Internationale du travail en matiere de droits de lhomme, RDHIHRJ,

vol. IV, No. 4, 1971, pp. 691-769;by the same author, Droit international du travail, Paris,
Dalloz, 1970; and updated edition in English, International Labour Law, Deventer (Nether-
lands), Kluwer, 1979. See also Van der Ven, J.J.M., La liberte, motif juridique dans
lorganisation internationale du Travail, RDHIHRJ, vol. VIII, No. 4, 1975, pp. 869-882.
4. The IL0 and human rights, Report of the Director-General of the International
Labour Office to the International Labour Conference, 52nd session, 1968. Comparative
analysis of the International Covenants on Human Rights and the international labour
Conventions and recommendations, Official Bulletin, vol. LII, 1969, No. 2, pp. 188-226.
5. Jenks, C. Wilfred, Human Rights, Social Justice and Peace-The Broader Signiti-
cance of the IL0 Experience. In: International Protection of Human Rights. Proceedings
of the 7th Nobel Symposium published under the direction of A. Eide and A. Schou, ed.,
Almquist and Wiksell, Stockholm, 1968, pp. 235-236.
6. Valticos, N., Un developpement du droit international du travail: les droits syndicaux
et les libertes publiques. In: En hommage o Paul Horion, Liege Faculty of Law, 1972, pp.
263-289.
7. Reference may be made, particularly, to the more detailed information contained in
the general studies submitted by the Committee of Experts concerning the Conventions on
freedom of association (in 1959 and 1973), forced labour (in 1962 and 1968) and discrimina-
tion in employment (in 1963 and 1971).
8. Freedom of Association. Digest of Decisions of the Freedom of Association Commit-
tee, ILO, Geneva, 2nd edition, 1976.
9. Valticos, N. International Labour Law, op. cit. pp. 225-227.
10. The following States: Belgium, Bulgaria, Cuba, Djibouti, Federal Republic of Ger-
many, Finland, France, Italy, Netherlands, Norway, Panama, Peru, Poland, Spain, Swe-
den, United Kingdom, Uruguay and Yugoslavia.
11. Concerning this practice and its importance, see Jenks, C. Wilfred, State Succession
in Respect of Law-Making Treaties, in The British Yearbook of International Law, 1952,
pp. 105-144;Wolf, F., Les Conventions internationales du travail et la succession dEtat,
in Annuaire francais de droit indernational, 1961, pp. 742-751. By the same author,
LOrganisation internationale du travail, sa competence et les transformations Ctatiques,
in Communizioni e Studi, Milan, vol. 9, 1957, pp. 47-71; OConnell, State Succession in
Municipal Lau and International Law, Cambridge, 1967, vol. II, pp. 202-204.
12. Valticos, N., Un systeme de controle international: la mise en oeuvre des conven-
tions internationales du travail, in RCADI, vol. 123, 1968-1, pp. 311-407; by the same
author: Znteruational Labour Law, op. cit., pp. 239-257; and Wolf, F., Aspects judiciaires
de la protection internationale des droits de lhomme par IOIT, in RDHIHRJ, vol. IV-4,
1971, pp. 773-838. See also the reports submitted by the IL0 to the United Nations on the
matter: does. E/4144 (1965), Ai6699iAdd 1 (1967), and EiCN.411023iAdd. l(1971).
13. The Governing Body of the IL0 has adopted in this connection a detailed memoran-
dum which provides precise information as to the coverage of the rule and presents gov-
ernments with a number of questions.
14. The rules governing this selective system for the spacing out of reports on ratified
Conventions were approved by the Governing Body at its 201st Session, in November 1976.
They are designed to ensure the continuing effectiveness of supervision, while lightening
the burden falling on both national administrations and IL0 supervisory bodies.
15. Each year the Governing Body of the IL0 selects certain Conventions or Recommenda-
tions and requests States to make reports of this type, on the basis of forms which are less
detailed than in the case of ratified Conventions. As is indicated below, such reports have
been requested more especially, and on several occasions, on Conventions concerning fun-
damental human rights.
16. ILO, Geneva, International Labour Conference: Report ofthe Committee of Experts
on the Application of Conventions and Recommendations, Report III (Part IV), 1967, p. 3;
1967, p. 11; 1969, p. 19, 1971, p. 6; 1977, p. 13; (this report will be referred to subsequently
as Rep. Comm. Exp.).
17. See in particular a study of this question in the Report of the Committee of Experts
1963, pp. 8-12, paras. 21-34, and 1970, p. 8, paras. 18-19. See also in this connection
Valticos, Droit international du travail et droit interne francais, Truvaux du Corn&
franc& de droit international privl (197Z-197.5),Paris, Dalloz, 1977, pp. 11-28.
18. Thus, in France, under the Labour Code (Act. No. 73-4 of 2 January 1973)the text of
provisions of international labour Conventions applicable in French municipal law was
published as an Annex to the Code.
19. Jenks, C. Wilfred, The Application of International Labour Conventions by Means
of Collective Agreements, in Zeitschnft fur AusRindisches @entliches Recht und Volkerrecht,
Festgabe Makarov, Stuttgart and Cologne, Aug. 1958, pp. 197-224.Wolf, F., Lapplication
des Conventions internationales du travail par voie de Conventions collectives, Annuaire
frantpis de droit international, 1974, pp. 103-114.
20. Rep. Comm. Exp. 1977, p. 11.
21. See Valticos and Wolf, LOrganization internationale du Travail et les pays on voie
de developpement: techniques delaboration et mise en oeuvre de normes universelles, in
Pays en voie de developpement et transformation du droit international, Societe francaise
pour le droit international, Colloque dAix-en-Provence, Pedone, Paris, 1974, pp. 127-146
and 167-168. Valticos, International Labour Law, op. cit., pp. 51-54.
22. The results of this supervision are dealt with in a more general IL0 study on the
Impact of the International Labour Conventions and Recommendations, ILO, Geneva,
1977.
23. Landy, E.A., The Effectiveness of International Supervision-Thirty Years of IL0
Experience, London, Stevens and Sons, and Dobbs Ferry, New York, Oceana Publications,
1966. See also, by the same author: The influence of international labour standards: Possibili-
ties and Performance, in International Labour Review, vol. 101, No. 6, June 1970, pp.
55-604.
24. See Rep. Comm. Exp. 1972, para. 125.
25. See e.g. Rep. Comm. Exp. 1973, para. 103.
26. See in this connection the articles published in the International Labour Review on
the influence of Conventions in Belgium (Nov. 1968), Colombia (Feb. 1969), the Federal
Republic of Germany (Dec. 1974), France (April 1970), Greece (June 1955), India (June
1956), Ireland (July 1972), Italy (June 1961), Nigeria (July 1960), Norway (Sept. 1964),
Poland (Nov. 1965), Republic of Cameroon (Aug-Sept. 1973), Switzerland (June 1958),
Tunisia (March 1965), United Kingdom (May 1968), and Yugoslavia (Nov. 1967). See also
the general study mentioned above, note 22.
27. See the opinion of Judge Philip C. Jessup in the South-West African cases, Interna-
tional Court of Justice, Digest, 1962, judgement of 21 December 1962, pp. 428 and 431.
Judge Jessup added that this rule reflected the conviction that the well-being of mankind is
as indivisible as peace and that it constitutes the application to the international sphere of
the well-known lines of the English poet John Donne, written more than three centuries
ago: No man is an Island entire of itself; every man is a piece of the Continent, a part of the
main. Any mans death diminishes me, because I am involved in Mankind.
28. See concerning the first two procedures, Vignes, Daniel, Procedures internationales
denquete, in Annuaire francais de droit international 1963, p. 444. See the reports of
those two Commissions: ILO, Official Bulletin, vol. XLV, No. 2, Supplement II, April
1962, and vol. XLVI, No. 2, Supplement II, April 1963. For the report on Greece, see also
Official Bulletin, vol. LIV, No. 2, Special Supplement, 1971. For the procedure concerning
Chile, it was combined with that concerning freedom of association: see below, note 34.
29. More recently, in 1975, 1976 and 1977, respectively, delegates of workers organiza-
tions to the International Labour Conference lodged complaints against the governments of
Uruguay, Bolivia and Argentina concerning the application of the Conventions on freedom
of association. For the time being, the questions raised are dealt with in accordance with the
special procedure for the protection of freedom of association which is described further on.
Direct contacts took place in the first two cases.
30. Jenks, C. Wilfred, The International Protection of Trade Union Freedom, London,
Stevens and Sons, 1957, and The International Protection of Trade Union Rights, in The
International Protection of Human Rights, edited by Evan Luard, London, Thames and
Hudson, 1967, pp. 210-247. Von Potobsky, G., Normas internacionales, libertad sindical y
derecho colectivo de1 trabajo, in Tratado de derecho de1 trabajo, vol. V, Buenos Aires,
1966, pp. 597-699. CasseseA., 11controllo internazionale sul rispetto della liberta sindacale
nel quadro delle attuali tendenze in materia de protezione internazionale dei diritti delluomo,
extract from: Communicazioni e Studi; vol. XII, Milan, 1966, pp. 293-418. Valticos, N.,
La protection internationale de la liberte syndicale vingt-cinq ans apres, in RDHIHRJ,
vol. VII-l, 1974, pp. 5-39, Valticos, Les methodes de protection internationale de la liberte
syndicale, in RCADI, vol. 144, 1975-I pp. 77-138.
31. This was affirmed by the Second European Regional Conference of the IL0 in a
resolution adopted on 23 January 1974. See also the Report on The Trade Union Situation
in Chile, by the Fact-Finding and Conciliation Committee, ILO, Geneva, 1975, p. 108,
paragraph 466.
32. See more particularly: von Potobsky, G., Protection of trade union rights: Twenty
years work by the Committee on Freedom of Association, in International Labour Re-
view, vol. 105, No. 1, January 1972, pp. 69-83.
33. Valticos, N., La Commission dinvestigation et de conciliation en matiere de liberte
syndicale, in Annuaire francais de droit international 1967, pp. 445-468.
34. See ILO, Official Bulletin, vol. XLIX, No. 1, special supplement, January 1966.
35. The trade union situation in Chile. Report of the Fact-Finding and Conciliation
Commission on Freedom of Association, ILO, Geneva, 1975. Concerning this procedure,
see also Valticos, Un double type denquete de IOIT au Chili, Annuaire francais de droit
international, 1975, pp. 483-502.
36. Valticos, N., Une nouvelle experience de protection des droits de lhomme: le groupe
detude de IOIT charge dexaminer la situation en mat&e de travail et en matiere syndicale
en Espagne, in Annuaire fruncais de droit international, 1970, pp. 567-590;and LOIT et
levolution de la legislation syndicale en Espagne, Estudios de Derecho International,
Homenaje al Profesor Mioja de la Muela, Madrid, 1979, pp. 793-812.
37. ILO, Geneva, 1969: The Labour and Trade Union Situation in Spain, VIII, 298 pp.
38. The ILOs total expenditure for technical co-operation exceeded 78 million dollars in
1979 and involved the use, as of January 1979, of over 700 experts in 125 countries. See for a
general survey: Blanchard, F., LOIT et la cooperation technique, in Revue francaise des
uffaires sociales, AprilJune 1969, pp. 37-54.
39. Such missions have been to Colombia, Dominican Republic, Iran, Kenya, Philippines,
Sudan and Sri Lanka, and on-the-spot studies have been carried out in Burundi, Chile,
Costa Rica, Ethiopia, Jamaica, Laos, Liberia, Madagascar, Morocco, Panama, Pakistan and
Zaire.
40. I have endeavoured to identify the part played by international inspection in these
procedures in: Valticos, N., Linspection internationale dans le droit international du tra-
vail, in Linspection internationale, G. Fischer and D. Vignes, eds., Bruylant, Brussels,
1976, pp. 379-437.
41. Concerning the scope and limits of this work by the secretariat, see Jenks in Evan
Luard, op. cit., pp. 240-241; Van Asbeck, Une commission dexperts, in Symbolae Verzijl,
The Hague, 1958, p. 19; and Quelques aspects du controle international non judiciare de
lapplication par les gouvernements de Conventions internationales, in Ned&u&s T$.schrifl
voor Internationaal Recht, volume in honour of Professor Francois, Leyden, 1959, p. 33.
42. See in this connection Jenks in Evan Luard, op. cit., pp. 239-240; Van Asbeck, Une
commission dexperts, op. cit., pp. 18-19; Golsong H., Implementation of International
Protection of Human Rights, in RCADZ, 1963-111,pp. 24, 34 and 140-141; Juvigny, P.,
The Legal Protection of Human Rights at the International Level, in International Social
Science Journal, vol. XVIII, No. 1, 1966, p. 76; by the same author, LOIT et les droits de
lhomme, in Revue francaise des aflaires sociales, AprilJune 1969, p. 94, where it is stated
inter alia that it is to the honour of the IL0 that it has created conditions which have given
rise to a genuine tradition of objectivity within those organs.
43. See Jenks in Evan Luard, on. cit., pp. 239-240.
44. See in this connection Jenks in Nobel Symposinm, op. cit., pp. 249-256; Valticos, N.,
Un systeme de controle international: la mise en oeuvre des Conventions internationales
du travail, op. cit., pp. 386-388.
45. See also the statement by U Thant, Secretary-General of the United Nations, to the
International Labour Conference on 18 June 1969, Report of Proceedings, 53rd session,
Geneva, 1969, p. 319.
46. Jenks, C. Wilfred, Social Justice in the Law of Nations. The IL0 Impact after Fifty
Years, Oxford University Press, London-Oxford-New York, 1970, pp. 33 et seq.
47. Scelle, G. Precis de droit des gems, vol. I, Paris, 1932, p. 521.
48. Lord McNair, The E.rpunsion of Znternationat Law, Jerusalem, 1962, p. 45.
49. See address delivered in Abidjan in August 1973, American Bar Association Jour-
nal, November 1973, p. 1259.
50. Thus, on 27 March 1974, the Sub-Commission on international organizations and
movements of the Commission for Foreign Affairs of the Chamber of Representatives of the
United Nations suggested that the ILOs methods in regard to the protection of human
rights should be emulated by other international organizations. See also, a similar sugges-
tion by the International Confederation of Free Trade Unions, Free Labour World (Brus-
sels) Nov.-Dec. 1979, p. 7.
51. Ago, Robert, La codification du droit international et les problemes de sa realisa-
tion, in Recueil detudes de droit international en hommage &Paul Guggenheim, Geneva,
1968, pp. 117 et seq.
52. Cassese, A., 11controllo internazionale sul rispetto della liberta sindacale nel quadro
delle attuali tendenze in materia di protezione internazionale dei diritti delluomo, op. cit.,
pp. 293-418. Vellas, P., Levolution de la competence de 1OIT et laffaire de la liberte
syndicale au Japan, in Droit social, Paris, June 1967, p. 362. See also the report of a
commission of the American Society of International Law, in American Journal oflnterna-
tional Law, vol. 64, no. 4, p. 309.
53. Valticos, N., Les systemes de controle non judiciare des instruments internationaux
relatifs aux droits de Ihomme, in Melanges offerts h P. Modinos (Problemes des droits de
lhomme et de lunification europkenne), Paris, Pedone, 1968, pp. 331-356. By the same
author: Un systeme de controle international: la mise en oeuvre des Conventions ratitiees,
op. cit., pp. 389-398, and Droit international dn travail, op. cit., pp. 600-607.
THE INTERNATIONAL
DIMENSIONS OF
HUMAN RIGHTS
Karel Vasak
General Editor
Revised and edited for the English edition
by Philip Alston
Volume 2
GP
0
GREENWOOD PRESS
WESTPORT, CONNECTICUT
UNESCO, PARIS, FRANCE

Library of Congress Cataloging in Publication Data
Dimensions internationales des droits de lhomme.
English.
The International dimensions of human rights.
Translation of: Les dimensions internationales des
droits de lhomme.
Bibliography: v. 2, p.
Includes indexes.
1. Civil rights (International law&-Addresses, essays,
lectures. 2. Civil rights-Addresses, essays, lectures.
I. Vasak, Karel. II. Alston, Philip. III. Unesco.
IV. Title.
K3240.6.D5513 341.481 81-22566
ISBN: O-313-23394-2(set) AACRZ
ISBN: 0-313-23395-O(vol. 1)
ISBN: O-313-23396-9(vol. 2)
Copyright 0 1982 by Unesco

All rights reserved. No portion of this book may be
reproduced, by any process or technique, without the
express written consent of the publisher.
Library of Congress Catalog Card Number: 81-22566
Greenwood Press ISBN: O-313-23394-2(set)
Unesco ISBN: 92-3-101477-3

First published 1982 by the United Nations Educational, Scientific and Cultural
Organization, 7, Place de Fontenoy, 75700, Paris, France, and Greenwood Press,
a division of Congressional Information Service, Inc.
88 Post Road West, Westport, Connecticut 06881
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
Contents
...
Tables x111
Foreword xv
Preface xxi
...
Abbreviations xx111
1. Human Rights: As a Legal Reality

Karel Vasak 3
1. First Requirement: A De Jzcre State 4

2. Second Requirement: A Specific Legal
Framework 6
3. Third Requirement: Effective Guarantees 8
2. Historical Foundations of Human Rights and Subsequent

Developments
Inwe Szabo 11
1. Human Rights in General 11

2. The Emergence of Human Rights at the International
Level 20
3. The Universal Declaration of Human Rights 23
4. The International Covenants on Human Rights 28
5. The Implementation of Human Rights 34
PART I: PRINCIPLES AND NORMS OF

HUMAN RIGHTS
3. Distinguishing Criteria of Human Rights
Theodoor C. um HOLWL 43
1. Fundamental Human Rights-Other Human

Rights 43
vi Contents
2. Civil and Political Rights; Economic, Social and

Cultural Rights 48
3. Individual Rights; Collective Rights 53
4. Fundamental Principles of Human Rights:

Self-Determination, Equality and Non-Discrimination
Karl Josef Pa&ch 61
1. Self-Determination 62
2. Equality 68
3. Non-Discrimination 72
5. Survey of the Positive International Law of Human

Rights
Theodoor C. van Bove?r 87
Introduction: Diversity of Sources 87

1. General Instruments 89
2. Specific Instruments 92
3. Customary Law and General Principles of Law 105
4. Decisions of International Organs 107
5. Doctrine 110
6. Economic, Social and Cultural Rights

1. The Right to Work 115

2. The Right of Everyone to Just and Favourable
Conditions of Work 116
3. Trade Union Rights 118
4. The Right of Everyone to Social Security, Including
Social Insurance 120
5. The Right to Protection of and Assistance to the
Family, Mothers and Children 121
6. The Right to an Adequate Standard of Living 122
7. The Right of Everyone to the Highest Attainable
Standard of Physical and Mental Health 124
8. The Right of Everyone to Education 125
9. Cultural Rights 127
10. Equality in the Enjoyment of Economic, Social and
Cultural Rights 130
Contents vii
7. Civil and Political Rights 135
1. Problems in the Application and Interpretation

of Civil and Political Rights by Frank C. Newman 135
2. Analytical Examination of Civil and Political Rights
by Karel Vasak 142
Conclusions by Frank C. Newman 160
8. Principles and Norms of Human Rights Applicable

in Emergency Situations: Underdevelopment,
Stepheu P. Marks 175
1. Emergency Arising from Economic and Social

Conditions as a Whole 176
2. Emergency Arising from Force Ma,jeure: Natural
Catastrophes 186
3. Emergency Arising from the Existence of Internal
Disturbances and Armed Conflicts 190
4. Comparison Between the Different Types of Conflict
Situations in Terms of the Applicable Norms and
the Notion of J/M Cogells 200
PART II: INTERNATIONAL INSTITUTIONS FOR THE

PROTECTION AND PROMOTION OF
HUMAN RIGHTS
9. The Distinguishing Criteria of Institutions

Karel Vasak 215
1. The Task of Human Rights Institutions 215

2. The Functions Carried Out by Human Rights
Institutions 218
3. The Scope of Activity of Human Rights
Institutions 221
4. The Techniques Used by Institutions for the
Protection of Human Rights 222
5. The Legal Nature of the Institution 226
SUB-PART I: UNIVERSAL INSTITlJTIONS
10. The Principal Institutions and Other Bodies Founded

Under the Charter
Egon Schwelb axd Philip Alston 231
...
Vlll Contents
1. The Principal Organs of the United Nations and the

Subsidiary Organs Active in Human Rights
Matters Established Under the Charter 232
2. Procedures Used and Action Taken by United
Nations Organs in Human Rights Matters 269
11. United Nations Institutions and Procedures Founded

on Conventions on Human Rights and Fundamental
Freedoms
Kamleshwa~ Das 303
General Introduction 303

(a). The International Convention on the Elimination
of All Forms of Racial Discrimination 307
(b). International Covenants on Human Rights and
Optional Protocol to the International Covenant
on Civil and Political Rights 330
(c). Other Conventions on Human Rights and
Fundamental Freedoms 348
12. The International Labour Organisation (ILO)

Nicolas Vulticos 363
Introduction: The Place of Human Rights in the Consti-

tution and the Various Instruments of the IL0
and the Legal Framework for their Protection 363
(a). Supervisory Machinery Applicable to All the
Conventions and Recommendations 368
(b). Special Machinery for the Protection of Freedom
of Association 381
(c). Special Inquiries and Studies 387
(d). Education and Training Measures 390
(e). Technical Co-operation and the World Employment
Programme 390
13. Unesco and Human Rights

Hanna Saba 401
1. Unescos Normative Activities in the Field of Human

Rights 402
2. Implementation of the Convention for the Protection
of Cultural Property in the Event of Armed Conflict 403
3. The Implementation of the Convention Against
Discrimination in Education 410
Contents ix
4. Procedures Established by the Executive Board or

the General Conference 416
14. The Implementation of Humanitarian Law

Christian Dominic& 427
1. The System of Supervision Instituted by the Geneva

Conventions 427
2. The Protecting Powers and Their Substitute 429
3. The Delegations of the International Committee of
the Red Cross 439
4. Recent Developments and Appraisal 443
SUB-PART II: REGIONAL INSTITUTIONS FOR THE

PROMOTION AND PROTECTION OF
HUMAN RIGHTS
15. Introduction
Karel Vasak 451
1. The United Nations and Regional Human Rights

Institutions 451
2. Regional Human Rights Institutions-The Present
Position 453
3. Human Rights and Regional Integration 454
16. The Council of Europe

Karel Vasak 457
1. The European Convention on Human Rights 458

2. The European Social Charter 536
17. The Organization of American States (OAS)

Hhctor Gros Espiell 543
1. The Inter-American Commission on

Human Rights 548
2. The American Convention on Human Rights 555
3. The Inter-American Commission on Women 566
4. The Inter-American Childrens Institute 567
18. The League of Arab States

B. Boutros-Ghali 575
-
X Contents
Introduction: Establishment of the League and Its

Relations with the United Nations 575
1. The Regional Arab Commission on Human Rights 576
2. The Draft Declaration for an Arab Charter of Human
Rights 579
3. Other Relevant Activities 579
19. The Organization of African Unity (OAU) 583
1. Human Rights in Africa by Keba MBaye 583

2. The Place of Human Rights in the Charter of the
Organization of African Unity by Birame Ndiaye 601
3. African Charter on Human and Peoples Rights 616
20. The Socialist Countries and Human Rights

1. The Socialist Concept of Human Rights 631

2. Co-operation Among Socialist Countries in the Field
of Human Rights 644
21. Asia and Human Rights

Hiroko Yumane 651
1. Evolution of the Approach to Human Rights

Problems 653
2. Various Views and Types of Action for the Promotion
and Protection of Human Rights in Asia: Old and
New 661
3. Possibilities of Regional Co-operation for the Promotion
and Protection of Human Rights in Asia 663
22. Toward a Specific International Human Rights Law

Karel Vasak 671
Annex I. Chart of Rnt?fication, buck pocket
Annex II. Figures
1. Comparative Schema ofthe Implemen-

tatiow Machinery of the European
Conveutio,~ and the America17 Conuerltion
on Hurna~l Rights 684
Contents xi
2. Schema qf the Implementation Machinery

of the InteTxational Cove?zant OH Civil
and Political Rights 685
3. Comparative Schema of the

Implementatiorz Machineq of the
European Social Charter and the
International Covenant ov Economic,
Social arzd Cultural Rights 686
Ann,ex III. Selected Bibliography on Isternation,al

Human Rights Law 687

Ger.eral Index 743
~--- __.. .-.--

Tables
8.1 Human Rights Norms Applicable in Cases of Non-

International Armed Conflicts of Public Emergency
Threatening the Life of the Nation 188
8.2 Comparison of Level of Protection as a Function of the

Type of Conflict Under International Human Rights Law
and International Humanitarian Law 201
8.3 Interface Between International Law of Armed Con-

flicts and International Human Rights Law Showing the
Place of Norms Having the Character of Jlts C0gelt.s 203
16.1 Applications Declared Admissible 476
16.2 Cases Brought Before the Committee of Ministers 504
16.3 Cases Referred to the Court 526

THE INTERNATIONAL
DIMENSIONS OF
HUMAN RIGHTS
13 Unesco and
Human Rights
Hanna Saba
According to the Constitution of Unesco, the purpose of the Organization is

to contribute to peace and security by promoting collaboration among the
nations through education, science and culture in order to further universal
respect for justice, for the rule of law, and for the human rights and fundamen-
tal freedoms which are affirmed for the peoples of the world, without distinc-
tion of race, sex, language or religion.
Since its inception, all the programmes of the Organization have been
consequently established with due regard for these supreme goals. All the
sectors of Unesco-education, natural sciences, social sciences, culture and
communication-treat the defence of human rights which is indissolubly linked
to the safeguarding of peace, as the ultimate goal of their efforts. All that is
not explicitly aimed at developing respect for those rights in general, and at
implementing specific rights, consists essentially, however, in creating the
indispensable material, intellectual, moral and cultural conditions whereby
human rights may pass from being principles to becoming tangible realities in
the lives of all human beings. From the standpoint of Unesco, economic and
social development must itself be defined as an indispensable precondition for
the full exercise of t,hose rights.
The advance of science and its utilization in the service of development are
bound to transform the material conditions of mens lives. By means of sci-
ence it should be possible to make it considerably easier to meet mens needs,
and, by increasing the resources of governments, to overcome the difficulties
encountered, particularly with regard to the achievement of economic, social
and cultural rights.
Furthermore, at a time when science and technology are changing the face
of the planet and the living conditions of its inhabitants, a minimum of scien-
tific knowledge is becoming one of the fundamental rights of human beings.
Scientific knowledge is in fact indispensable if we are to understand the world
in which we live, our place in it, our possibilities and limits.
The dissemination of cultures, access by all peoples to the masterpieces of
the spirit or of art that each of them has produced, lead us to understand each
402 Hanna Saba
other better and to appreciate more fully that which runs through the diver-
sity of cultures, and constitutes a common universal heritage. In such cir-
cumstances, cultural exchanges greatly contribute to the promotion of
international understanding and friendship among peoples.
The new techniques of information and communication provide particularly
effective means of making human rights known and of disseminating the
principles that the United Nations has established in this field.
The struggle against discrimination and racial or religious prejudice often
calls for studies to be carried out in the social sciences. In addition, such
studies make it easier to analyze the different conceptions that men may form
of their rights; they make it possible to cope better with the difficulties
encountered in the implementation of certain rights, in which, it should be
noted, account must be taken of the diversity of traditions and differences in
economic and social conditions.
The task of philosophical thinking in this context is to examine the univer-
sality of human rights from the perspective of the diversity of religions,
absolutes and traditions. Sacrificing neither the concrete diversity of man-
kind for some abstract universality, nor the fundamental unity of the human
race for the sake of the multiplicity of absolutes which have generated war in
the course of history, philosophy seeks an understanding more rooted in
concrete situations which, over and above confrontations of logic or dogma,
makes it possible to give universal expression to human rights by actually
going to the core of diversity.
Thus, by virtue of both its nature-and the fields in which it is pursued-
and its purpose, Unescos action helps to ensure respect for all human rights.
The execution of a programme, laid down by the General Conference of
Unesco in which all its members are represented, and which provides for the
utilization of highly diverse methods and techniques adapted to the complex
problems arising from the development of education, science and culture, is
the principal means whereby Unesco endeavours to attain its objectives.
In order for it to pursue its goals, the Organization, besides taking direct
responsibility for the implementation of its activities, formulates standards
and principles intended to direct the action of governments. Unescos policy
in regard to the numerous problems arising from this promotion and obser-
vance of human rights is consequently defined not only in its direct activities,
but also in the various legal instruments, declarations, conventions and
recommendations that it has adopted since it was founded in 1946.
1. UNESCOS NORMATIVE ACTIVITIES IN THE FIELD OF

HUMAN RIGHTS
One of the functions of Unesco according to its Constitution is to recommend
such international agreements and conventions as may be necessary to pro-
Unesco and Human Rights 403
mote the purposes of the Organization.4 The Constitution further distinguishes

between conventions and recommendations5 to which practice has added the
category of declarations. Of the twenty-seven conventions, protocols and other
agreements, adopted either by the General Conference or special intergovern-
mental conferences convened by Unesco, the twenty-nine recommendations
and five declarations, many concern human rights and particularly the rights
to education, culture and information set out in Articles 26, 27 and 19 of the
Universal Declaration.
With regard to the implementation of the Conventions and Recommenda-
tions adopted by the General Conference, the Constitution of Unesco is mod-
elled upon certain methods and practices of the International Labour
Organisation.
According to Article IV, paragraph 4, each Member State undertakes to
submit recommendations or conventions to its competent authorities within a
period of one year from the close of the session of the General Conference at
which they were adopted with a view to their adoption and application.
Moreover, each Member State shall submit at such times and in such man-
ner as shall be determined by the General Conference reports. on the ac-
tion taken upon the recommendations and conventions referred to in Article
IV, paragraph 4.
In contrast with the Constitution of the ILO, however, the Constitution of
Unesco does not establish a procedure for appeals and complaints concerning
the non-observance of the provisions of a ratified convention. As will be seen,
it was by means of a special protocol that a Conciliation and Good Offices
Commission was established within the Organization, and was instructed to
seek to settle differences arising between States party to one of the most
important Conventions of Unesco, that against discrimination in education.
The conventions and recommendations drawn up by special Conferences
convened by Unesco are not subject to the forementioned provisions of the
Constitution: these relate only to the implementation of instruments adopted
solely by the General Conference of the Organization. Most of those conven-
tions and recommendations nevertheless provide for special measures of im-
plementation and such, in particular, is true of the Convention for the Protection
of Cultural Property in the Event of Armed Conflict adopted by a special
diplomatic conference which was held at The Hague from 21 April to 14 May
1954, and which was convened by Unesco.
2. IMPLEMENTATION OF THE CONVENTION FOR THE

PROTECTION OF CULTURAL PROPERTY IN THE
EVENT OF ARMED CONFLICT7
This Convention, adopted at The Hague on 14 May 1954, is founded on the
principle that damage to cultural property belonging to any people whatso-
404 Hanna Saba
ever means damage to the cultural heritage of all mankind. The purpose of
the Convention is to provide international protection for this heritage which,
in order for it to be effective, must be organized in time of peace. To that end,
the Contracting Parties undertake, on the one hand, to safeguard cultural
property against the foreseeable effects of an armed conflict, by taking such
measures as they consider appropriate (building of shelters against bombard-
ments, prevention of fires and the collapse of buildings, etc.). They under-
take, on the other hand, to respect cultural property situated within their
own territory as well as within the territory of other Contracting Parties by
refraining from any use of the property and its immediate surroundings or of
the appliances in use for its protection for purposes which are likely to expose
it to destruction or damage in the event of armed conflict and by refraining
from any act of hostility directed against such property.
Furthermore, the contracting States undertake to prohibit, prevent and, if
necessary, put a stop to any form of theft, pillage or misappropriation of, and
any acts of vandalism directed against, cultural property. They also under-
take to refrain from requisitioning moveable cultural property situated in the
territory of another Contracting Party.
The Convention also contains special provisions concerning occupied terri-
tories and the obligations of the Occupying Powers in respect of cultural
property situated in those territories.
(a). Control of the execution of the Convention

This control is the subject of extensive provisions in the 1954 Convention and
the Regulations for its execution. However, practice, and in particular Unescos
action in the Middle East conflict, have considerably increased the impact of
those provisions and improved the operation of the machinery for interna-
tional supervision established by them.
There is scarcely any need to stress the importance of the organization and
operation of machinery for international control in ensuring that the rules to
be observed in cases of armed conflict are respected. The mere fact that such
machinery exists is likely to influence the responsible agents of the parties to
the conflict to give attention and consideration to rules since their violation
could be brought to the attention of, and denounced before, the entire world.
Although the provisions relating to the organization of supervision come
under the heading of control, the machinery established by the 1954 Conven-
tion goes beyond the strict framework of the mere control of the application
of the Convention. The powers and responsibilities conferred upon the differ-
ent agents whose appointment is provided for immediately upon the outbreak
of an armed conflict enable them to have, besides a supervisory role, a posi-
tive function in ensuring the implementation of important provisions of the
Convention and the Regulations, particularly in regard to the organization of
the transport of cultural property threatened by an extension of the conflict,
the granting of special protection for improvised refugees, and so on.
(b). Organization of control

The organization of the machinery for control and implementation takes ac-
count of international practice whereby, when two countries enter into war
or simply break off diplomatic relations, they entrust a neutral State-a
Protecting Power-with the task of defending their interests in the country
with which they are in conflict. The Regulations stipulate (Art. 3) that the
protecting Power shall appoint from among the members of its diplomatic
staff delegates with special responsibility, together with the Commissioner-
General whose role is described below, for controlling the execution of the
Convention.
The Commissioner-General for Cultural Property is a neutral person cho-
sen from an international list compiled by the Director-General of Unesco and
containing the names of the candidates presented by the different countries
party to the Convention (Art. 1 of the Regulations). As soon as an armed
conflict breaks out a Commissioner-General for Cultural Property is appointed
to each State in conflict by joint agreement between, on the one hand, the
Government of the country to which he will be accredited and, on the other,
the Protecting Power acting on behalf of the opposing party. In addition,
each belligerent appoints a representative for cultural property situated in
its territory. If it is in occupation of another territory, it is required to
appoint a special representative for cultural property situated in that territory.
Commissioners-General, Representatives for cultural property and Dele-
gates of the Protecting Powers are the agents principally responsible for
control. Their mission is of a general character. In addition, provision has
been made for inspectors and experts to be appointed and charged with
specific missions. We shall now see how this machinery operates and what
are the powers and functions of the different agents.
The Commissioners-General for Cultural Property are principally respon-
sible for ensuring that the rules of the Convention are observed by the
belligerents. Whereas the Representative for cultural property and the Del-
egates of the Protecting Powers represent the parties engaged in conflict and
are appointed for the purpose of defending their respective interests, the
Commissioner-General, appointed to each country at war, has an essentially
impartial and international mission the purpose of which is to safeguard
property forming part of a cultural heritage which, as is emphasized in the
Preamble to the Convention, belongs to all mankind.
The Commissioner-Generals role is similar at the cultural level to that
exercised by the International Committee of the Red Cross at the humanitar-
ian level but, in addition, it is enshrined in legal texts and his functions are
recognized and accepted by Governments. He deals with all matters referred
to him in conjunction with the representative of the party to which he is
accredited and with the delegates of the opposing Protecting Power (Art. 6,
para. 1, of the Regulations). It falls to the latter to draw attention to any
Hanna Saba
violations of the Convention constituting grounds for complaint by the bellig-

erent whom they are duty bound to protect; when such violations occur, to
investigate, with the approval of the party to which they are accredited, the
circumstances in which they have occurred and to make representations
locally to secure their cessation. If necessary, they notify the Commissioner-
General whom they must keep informed of their activities (Art. 5 of the
Regulations).
The Commissioner-General makes any representations to the parties to
the conflict or to their Protecting Powers which he deems useful for the
application of the Convention. He can, with the agreement of the State to
which he is accredited, order an investigation or conduct it himself. He can
appoint inspectors or experts and charge them with specific missions.
Lastly, and this is particularly important, he draws up such reports as may
be necessary on the application of the Convention and communicates them to
the parties concerned and to their Protecting Powers (Art. 8 of the Regula-
tions). The Commissioner-General may thus be led to note violations of the
Convention in his report, to describe the representations made by himself as
well as by the delegates of the Protecting Powers and to put on record the
positive or negative outcome of his representations.
The fact that the report is drawn up by an eminent figure whose impartial
character and official responsibilities derive from the Convention cannot fail
to have an effect on international public opinion; this often acts as an effective
means of pressure and undoubtedly encourages the State concerned to give
very serious consideration to the observations of the Commissioner-General.
(c). Application of the provisions of the Convention and the Regulations to

the Israel-Arab conflict
Following the events of June 1967 and the resumption of fighting between
Israel and Egypt, Jordan, Syria and Lebanon, the Director-General of Unesco
took the initiative of inviting the parties to the conflict to give effect to the
provisions of the Convention and Regulations of 1954 concerning control.
One of the principle difficulties to be surmounted consisted in the fact that,
as Israel had never been recognized by the Arab countries and diplomatic
relations had never been established between it and its neighbours, no Pro-
tecting Power had been appointed to protect the interests of each of the
belligerents in the territory of the opposing party. Thus, as has been seen, it
falls to the Protecting Powers to play a decisive role not only in appointing
Commissioners-General but also at all stages of control, of which they are
important agents.
However, such a situation had been expressly provided for by the Regula-
tions which had adopted a proposal made by the delegate of Israel to the
Hague Conference in 1954 to the effect that a neutral State, chosen by joint
agreement by the parties to the conflict, be entrusted with those functions of
a Protecting Power which concern the appointment of Commissioners-General
---_I ..---.. .._.-..---- .--. _... .-_. __^ _._ -_.-. _-lll __--_
(Art. 9 of the Regulations), and that the Commissioners-General be invested

with the powers and functions of the Protecting Powers in discharging the
mission of control (Art. 6, para. 6, of the Regulations).
The belligerents by joint agreement had chosen Switzerland as the neutral
State required to appoint Commissioners-General, who then made the ap-
pointments at the end of September 1967. Mr. Reinnick (Netherlands) was
accredited to Israel and Mr. Brunner (Switzerland) was accredited to the
four Arab countries, the latter having decided to choose the same person.
However, it became clear both to the Director-General of Unesco and to
the States engaged in the conflict that the provisions of the Regulations
concerning the discharge of the mission of control were inadequate, particu-
larly in that specific instance where there did not exist a Protecting Power
possessing the facilities, privileges and immunities of an embassy required
for it to discharge the mission in the country to which it was accredited.
It was also indispensable that the Commissioner-General be entrusted, in
addition to his own responsibilities, with those of the Protecting Power, ac-
quire an adequate status and that he be able, in particular, to communicate
freely with the belligerent whose interests he was required to defend. It was
consequently necessary for the Commissioner-General to be granted the privi-
leges and immunities, which would ensure him complete independence in
respect of the government to which he would be accredited, and to receive
the benefit of minimum material facilities, particularly in respect of premises,
staff and communication.
The 1954 Regulations contained a serious omission in this respect. In Arti-
cle 10 it merely stipulated that: The remuneration and expenses of the
Commissioner-General for Cultural Property, inspectors and experts shall be
met by the Party to which they are accredited. Remuneration and expenses
of delegates of the Protecting Powers shall be subject to agreement between
those Powers and the States whose interests they are safeguarding. Such a
text makes the Commissioner-General dependent upon the State to which he
is accredited.
The situation consequently had to be remedied and a revision of the Conven-
tion was contemplated by some. In view of the time required for any new
texts to enter into force, this solution proved to be impracticable and the
view was taken that the best way to proceed would be to give a new interpre-
tation to the established provisions on the basis of joint agreement between
the various parties concerned.
On the initiative of the Director-General of Unesco, Ambassador Rappart,
delegate of the neutral State, Switzerland, and myself, representing Unesco
in my capacity as Assistant Director-General and Legal Adviser of the Organiza-
tion, engaged for ten days in discussions for that purpose with the represen-
tatives of Israel and with those of the four Arab countries. Following these
discussions during which the belligerents expressed the same views with
regard to the status of the Commissioners-General, the Executive Board of
408 Hanna Saba
Unesco took a number of important measures. It decided to set up a special

fund on the basis of contributions from the parties to the conflict enabling the
international organization itself to remunerate the Commissioners-General
and to meet their expenses. Thus, one of the shortcomings of the Regulations
was remedied in that, as has already been pointed out, it was stipulated that
such remuneration and expenses be paid by the State to which the Commissioner-
General is accredited: thus, the independence and international character of
the Commissioner-General are henceforth more clearly marked.
Moreover, the Executive Board of Unesco instructed the Director-General
of the Organization to take the necessary steps for the Commissioners-General
to be able, on taking up office, to:
a) enjoy the recognized immunities granted to high officials of the United
Nations system;
b) benefit from the services and assistance of the offices of the United
Nations and Unesco in the countries party to the conflict, particularly in
regard to communication facilities.
Lastly, the Executive Board expressed a desire to be informed of any
subsequent developments in the implementation of the Convention and, in
particular, of the legal and practical conditions under which the Commissioners-
General had discharged their mission.
This decision is particularly important. It undoubtedly indicates, more
clearly than the 1954 Regulations, the international character of the mission
of the Commissioners-General who, thanks to Unesco and the United Na-
tions, are granted the facilities necessary for them to carry out their task. It
normalized and strengthened relations between the Commissioners-General
and Unesco and from that time onwards assigned to the Organization, and in
particular to its Executive Board which was henceforth to receive regular
reports from the Commissioners-General, a role and a responsibility which
had not been expressly provided for in the Convention, but which undeniably
improve the effectiveness of the machinery for controlling its application.
(d). Consideration by the Executive Board of Unesco of reports from the

Commissioners-General on the application of the Convention
The Executive Board of Unesco received the first reports of the two
Commissioners-General in May 1968. They indicated in those reports that
they had been able to fulfil their functions thanks to the facilities placed at
their disposal by the representatives of Unesco and the United Nations (partic-
ularly in regard to communications) in the countries to which they had been
assigned and thanks to the immunities and status granted to them by the
Governments of those countries.
The method of work adopted by them consisted for each Commissioner in
receiving the complaints of the Government to which he was accredited con-
cerning violations alleged to have been committed by the opposing party and
in transmitting them to his colleague accredited to that party. The latter then
made an investigation and, where appropriate, made the necessary represen-

tations in order to ensure that the Convention be respected.
Apart from two complaints concerning the bombing, prior to the cease-fire,
of a convent in Jerusalem and of a museum and church in Suez, the reported
violations related essentially to the occupied territories.
The complaints formulated by the Arab countries concerned in particular:
-the removal of the famous Dead Sea manuscripts which had been on
exhibition in the Rockefeller Museum, situated in the Arab part of Jerusa-
lem, and their transfer to Israeli territory;
-the destruction of certain buildings in Jerusalem (Jordan);
-the removal of certain movable objects and a staircase from the Mosque of
Abraham in Hebron (Jordan);
-the carrying out of systematic excavations in occupied territory, particu-
larly in Jerusalem (Jordan) and in the region of Banias (Syria).
Subsequent reports from the Commissioners-General noted complaints from
the Arab countries concerning both the lack of maintenance of Moslem mon-
uments in Jerusalem and certain alterations being carried out in the Arme-
nian district of that city, opposite the Wailing Wall, in the ancient Jewish
district and in the Magrebeen Moslem district, the purpose of which seemed
to be radically to transform the very character of Jerusalem, in particular
through the destruction of buildings and monuments in the Arab or Moslem
style.
Israel on the other hand had invited the Commissioner-General accredited
to it to investigate the state of certain Jewish monuments (synagogues and
cemeteries situated in various Arab countries).
This request was rejected by the Arab countries who contended that it
was not based on any of the provisions of the Convention in that it con-
tained no reference to any act of hostility carried out by virtue of the armed
conflict.
The reports of the Commissioners-General were considered in turn by the
Executive Board and then by the General Conference of Unesco which adopted,
in December 1968, two resolutions in this connection.
The first (Resol. 3.342-15th session) recommended Member States to
take, with the help of the two Commissioners-General, all necessary mea-
sures to conform to the articles of the Convention and to the provisions of the
recommendation concerning the international principles applicable in the case
of archaeological excavations adopted by the General Conference of Unesco
at its ninth session (1956).
The second (Resol. 3.343-15th session), after referring in its preamble to
the exceptional importance of the cultural property in the old city of Jerusa-
lem to all humanity, and to a United Nations General Assembly resolution
concerning Jerusalem (Resolution 2253 adopted on 4 July 1967), addressed
an urgent international appeal in accordance with the said United Nations
resolution, calling upon Israel:
410 Hanna Saba
(a) to preserve scrupulously all the sites, buildings and other cultural prop-
erties, especially in the old city of Jerusalem;
(b) to desist from any archaeological excavations, transfer of such proper-
ties and changing of their features or their cultural and historical
character.
3. THE IMPLEMENTATION OF THE CONVENTION AGAINST DIS-

CRIMINATION IN EDUCATION
The methods and procedures for implementing and supervising the applica-
tion of the Convention against Discrimination in Education differ from those
just described and more closely resemble the procedures of the International
Labour Organisation.
The Convention and Recommendation against Discrimination in Education
was adopted by the General Conference at its eleventh session, on 14 Decem-
ber 1960.8 The Convention entered into force on 22 May 1962.
The purpose of these two instruments is not only to eliminate and prevent
all discrimination, but also to promote equal opportunity and treatment in
education. They thus contribute to the attainment of two separate but comple-
mentary objectives, included in the Constitution of the Organization. The
injustices to be fought and eliminated include not only discrimination which,
resulting from legislative provisions or administrative practices, involves
deliberate denial of the right to education of certain members of the commu-
nity, but also inequalities which often derive not so much from deliberate
intention as from a set of social, geographical, economic and historical cir-
cumstances, often referred to as a form of static discrimination in order to
better distinguish it from active and deliberate discrimination.
The nature of the undertakings entered into by the States party to the
Convention varies according to whether what is involved is the elimination of
discrimination or the assurance of equal opportunity. According to Article 3,
those states agree to undertake forthwith a series of measures; in particular,
they are to abrogate or modify any statutory provisions and to discontinue
any administrative practices which involve discrimination, and also not to
allow any different treatment or preference based solely on the ground that
people belong to a particular group. On the other hand, the measures to be
taken to ensure equal opportunities necessitate, in many countries, a far-
ranging effort which is not limited to education, as well as substantial budg-
etary expenditures which have to be spread out over time.
The Convention thus stipulates that the States shall formulate, develop
and apply a national policy which, by methods appropriate to the circum-
stances and to national usage, will tend to promote equality of opportunity
and of treatment in the matter of education.
The adoption by the General Conference of a Recommendation at the same
time as a Convention corresponds to a desire to take account of the diffcul-
___---- _~.-I ---.--. - .--.-_ .---- ~- I _.-.-.._._

.-._,- ..
ties that some Member States might encounter, for various reasons and, in
particular, on account of their federal structure, in ratifying the Convention.
Except for differences in formulation and in legal bearing inherent in the
nature of these two categories of instruments, the content of the Recommen-
dation is identical to that of the Convention.
The procedures for supervising the execution of the Convention hinge
essentially on the reports submitted by States. According to Article VIII of
the Constitution of Unesco, each Member State shall submit to the Organiza-
tion reports on the action taken upon the recommendations and conventions
adopted by the General Conference. In addition, the States who are Parties
undertake, by virtue of Article 7 of the Convention, to give to the Organiza-
tion information on the legislative and administrative provisions which they
have adopted for the application of the said Convention. A similar provision is
included in the Recommendation.
As was recalled by the General Conference at its fourteenth session (19661,
the taking cognizance by an international organization of the extent to which
its Member States apply the conventions adopted by it and give effect to its
recommendations constitutes an essential function. It is able to discharge
this task by examining periodically the reports that Member States are obliged
to submit to it for that purpose.
The object of this method is to enable the Organization to be apprised of
and to evaluate both the progress achieved by the various countries in im-
plementing an international instrument and the difficulties encountered by
them. The Organization is then in a position to determine its future action
more effectively.
This is particularly important when, as in the case of the 1960 Convention
and Recommendation, the instrument in question does not merely define
rules for immediate application but also constitutes the starting point for
progressive measures that States are invited to take in the future, with a
view to achieving to the fullest extent the objectives and goals pursued and
which the Organization is duty bound to guide.
It is to be pointed out that Article 6 of the Convention and a similar
provision of the Recommendation stipulate that the General Conference of
Unesco may adopt subsequent recommendations defining the measures to be
taken against the different forms of discrimination in education and for the
purpose of ensuring equality of opportunity and treatment.
The procedure for submitting and considering reports from Member States
on the application of the 1960 instruments was laid down in a decision taken
by the General Conference in 1964. Pursuant to this decision three consulta-
tions of Member States have been held: the first in 1965-66, the second in
1971-72, and the third in 1975-80. Detailed questionnaires were drawn up
by the Secretariat for each of these consultations. These questionnaires cov-
ered all the provisions of the 1960 Convention and Recommendation. By the
importance given to certain questions, they also reflect the particular con-
412 Hanna Saba
terns of the Organization. Moreover, considerable latitude is given to the

Secretariat in determining the subjects to be dealt with in the reports and the
form and periodicity of these reports.
The reports received were analyzed by the Secretariat and examined by a
special committee of the Executive Board of Unesco, composed of twelve
members.
The question arose however as to whether the organ called on to make a
first examination of the States reports should not, in conformity with the
practice of the ILO, be completely non-governmental in character. More-
over, the committee, which considers the reports of States on the Recom-
mendation concerning the Status of Teachers adopted in 1966 by a special
Conference convened by Unesco and drawn up with the full collaboration of
the ILO, is composed of independent persons appointed in their personal
capacity.
The Executive Board of Unesco considered that, pending reconsideration
of the matter in the light of the experience of the Committee on the Applica-
tion of the Recommendation concerning the Status of Teachers, the system in
force should be maintained.
After considering the reports of States, the special committee of the Board
itself establishes a report, in which it formulates its conclusions and recom-
mendations and which is submitted in turn to the Executive Board and then
to the General Conference.
The special Committee generally gives in its report an overall evaluation of
the situation and formulates a number of suggestions concerning the future
action of the Organization. In some cases, the special Committee gives its
interpretation of certain provisions of the Convention whose application has
given rise to difficulties. Such in particular was the case in regard to the
definition of national minorities and the significance to be given to article 5 (c)
of the Convention which refers to the right of national minorities to carry on
their own educational activities, including the maintenance of schools, and,
depending on the education policy of each State, the use or the teaching of
their own language. In its report, Finland drew attention to the particular
situation existing in the County of Aland. The fact of the matter was that by
virtue of special legislation deriving from specific historical and political circum-
stances and whose purpose was to safeguard the Swedish language and cul-
ture in the Aland Islands, it was prohibited, except with the special consent
of the commune concerned, to dispense education in a language other than
Swedish.
In its report, the Special Committee, after furnishing explanations con-
cerning the significance to be attached to the term national minorities,
stated its views as follows: In the case of multilingual countries which have a
federal system or a special system for certain provinces or administrative
units, another problem of interpretation arises. In such countries, responsi-
bility for education generally lies with the local authorities. However, popu-
lation groups which are in the majority in the country as a whole may be in
the minority in certain regions (provinces, States or cantons) which are more
or less autonomous in the matter of education. In the opinion of the Special
Committee, such groups should be regarded as national minorities within the
meaning of Article 5 (c) of the Convention or Section V (c) of the Recommen-
dation mentioned above, and consequently benefit from their provisions.
It should be noted that Finland has since deposited its instruments of
ratification of the Convention.
The 1960 Convention also contains a reference to disputes between States
concerning the interpretation or application of its provisions. Article 8 pro-
vides that such disputes may be referred to the International Court of Jus-
tice. However, the jurisdiction of the Court is optional and for each dispute
may be referred to the International Court of Justice. However, the jurisdic-
tion of the Court is optional and for each dispute the agreement of the States
concerned is necessary.
The proposal that the Courts jurisdiction be recognized as compulsory,
originally laid before the General Conference, came to nought on account of
the opposition of the socialist States of East Europe, whose traditional posi-
tion in this regard is well-known. They were joined by the Arab States and
many Latin American States.
The General Conference, however, by way of compromise, adopted in 1962
a Protocol instituting a Conciliation and Good Offices Commission to be Re-
sponsible for Seeking the Settlement of Disputes Which May Arise between
States Parties to the Convention. This Protocol obliges the States party to it
to recognize the jurisdiction of the Commission. Now ratified by 22 States,
the Protocol entered into force in October 1968.
In drafting it, Unesco was guided by various precedents, in particular
those of the European Commission of Human Rights, established by the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, the Fact-Finding and Conciliation Commission on Freedom of
Association and the Human Rights Committee, set up by the International
Covenant on Civil and Political Rights.
The Commission established by the Unesco Protocol is permanent. It is
composed of eleven members elected by the General Conference upon sub-
mission of their candidatures by the States Parties, but the members elected
sit in their personal capacity.
The draft Protocol established by the Director-General contained a pro-
posal that two of the eleven seats should be assigned to candidates presented
by non-governmental organizations in consultative relationship with Unesco
and recognized by its Executive Board as representing, on the one hand, the
teaching profession, and, on the other, the interests of pupils and students at
the various levels of education. This proposal was not adopted.
The members of the Commission must be nationals of the States Parties to
the Protocol, but the Commission cannot include more than one national of
414 Hanna Saba
the same State. The General Conference must seek to include in it persons
qualified in the field of education and persons with legal experience, either as
lawyers, jurists or members of tribunals, while taking into account the needs
for equitable geographical distribution and the representation of the various
forms of civilization and of the principal legal systems.
In addition to the eleven members of the Commission, ad hoc members
may be appointed when the Commission does not include a member whose
nationality is that of one of the States party to the dispute. The Secretariat is
ensured by the Director-General of Unesco.
Originally, recourse to the Commission was open only to States party to
the Protocol. If one of those States considers that another of them is not
applying the provisions of the Convention, it can, by written communication,
draw the attention of that State to the matter. The State receiving the
communication has three months to make its answer known. If, within six
months after the receipt of the initial communication, nothing has been set-
tled to the satisfaction of the two States, both have the right to refer the
matter to the Commission.
However, the Protocol stipulated that six months after its entry into force,
in other words, since October 1974 in fact, the Commission may be instructed
to seek to settle any dispute between States which, without being party to
the Protocol, are party to the Convention, if the said States so agree. Despite
this possible extension of the competence of the Commission, it is to be noted
that it remains limited to disputes between States and that no recourse is
directly accessible to private persons.
The Commission can, for any case brought before it, request the States
concerned to provide it with all relevant information. It must, however, hear
and determine a case only after exhausting domestic remedies in the sense
given to that expression by international law.
The role of the Commission, when it has obtained the information that it
considers necessary, consists essentially in establishing the facts and placing
its good offices at the disposal of the States concerned in order to reach a
friendly settlement of the matter on the basis of respect for the Conven-
tion. In such cases, the report will be confined to a brief statement of the
facts and of the settlement reached. If, on the contrary, no settlement of the
dispute has been reached, the report contains, in addition to a statement of
the facts, an indication of the recommendations which have been formulated.
Individual opinions are allowed.
The Commission may also recommend that the Executive Board or the
General Conference of Unesco, depending on the case, request the Interna-
tional Court of Justice to give an advisory opinion concerning any legal ques-
tion relating to a case brought before it. Moreover, it is expressly stipulated
that the setting up of the Commission does not impair the right of States to
have recourse to other procedures for settling their disputes and, inter alia,
to submit by joint agreement their disputes to the Permanent Court of Arbitra-

tion of The Hague.
Although the Commission has been established since 1971 and has met on
several occasions, in particular to establish and adopt its Rules of Procedure,
recourse has not been had to it so far.
Declaration on Race and Racial Prejudice and Resolution for its

Implementation*
In addition to the studies already mentioned, Unescos contribution to the
struggle against racism, racial discrimination and apartheid has involved
normative action.
The most noteworthy early activities of Unesco concerning racism were
the drafting of scientific statements. The first of these was issued in 1950 as
the Statement on Race. It was followed in 1951 by the Statement on the
Nature of Race and Race Differences. a Both these statements, drafted by
specialists, stress the biological and anthropological aspects of race based on
the latest findings of scientific research at the time and unequivocally reject
theories of racial superiority. The biological aspects were again predominant
in the Proposal on the biological aspects of race, drafted by 22 specialists
convened by Unesco in 1964.14
At an expert meeting convened by Unesco in September, 1967, a much
broader range of social scientists was represented among the 18 specialists,
who drafted the fourth document on the subject, Statement on Race and
Racial Prejudice. l5 That statement dwells on the political, economic, social
and cultural dimensions of the problem.
While these four documents carried the authority of the eminent specialists
who drafted them, they could in no way be said to be binding on the Member
States of Unesco. In order to reinforce the validity of the propositions espe-
cially those in the 1967 statement, the General Conference of Unesco invited
the Director-General at its seventeenth session (1972) to prepare, on the
basis of the 1967 statement, a draft Declaration on Race and Racial Preju-
dice,16 which was adopted at the twentieth session of the General Conference
in 1978.
The Declaration contains a number of original features which deserve spe-
cial mention.
For the first time in an international instrument, Unescos Declaration on
Race and Racial Prejudice proclaims the tight to be diffeerent, which is imme-
diately qualified to exclude the misuse of this right to justify discriminatory
practices. l7
After defining racism and its consequences, the Declaration stipulates
that it is contrary to the fundamental principles of international law and,
*The information in this section was revised with the collaboration of S. Marks on the basis
of a chapter by him to appear in another publication.
416 Hanna Saba
consequently, seriously disturbs international peace and security. The Dec-

laration also asserts that any form of racial discrimination practised by a
State constitutes a violation of international law for which the State is
accountable to other States in accordance with the rules of international
responsibility. lg
The Declaration not only condemns apartheid as one of the most serious
violations of the principle of equality in dignity and rights but also qualifies
apartheid as a crime against humanity [which] gravely disturbs interna-
tional peace and security.20 Apartheid thus has the same criminal status as
genocide according to this Declaration, a status it had already been given by
the International Convention on the Suppression and Punishment of the
Crime of Apartheid.
The Declaration has the additional feature of having its own resolution for
implementation. 21According to this resolution, Member States are urged to
communicate to the Director-General all necessary information concerning
the steps they have taken to give effect to the principles set forth in the
Declaration.z2 The Director-General is invited by the Resolution to prepare
a comprehensive report on the world situation in the fields covered by the
Declaration, on the basis of the information supplied by Member States and
of any other information supported by trustworthy evidence which he may
have gathered by such methods as he may think fit, and to enlist for this
purpose, if he deems it advisable, the help of one or more independent ex-
perts of recognized competence in these fields.23 The very existence of such
provisions as well as the potential they hold for pressuring States to comply
with the Declaration contribute to making the Declaration and Resolution
novel contributions to the international protection of human rights.
4. PROCEDURES ESTABLISHED BY THE EXECUTIVE BOARD

ORTHEGENERALCONFERENCE
Alongside the procedures laid down on conventions which have just been
summarized, certain procedures have been established by the Executive
Board or the General Conference to provide for the study of specific cases or
questions concerning the exercise of human rights in Unescos fields of com-
petence. The main such procedures are those used by the joint ILO/Unesco
Committee of Experts on the Application of the Recommendations concern-
ing the Status of Teachers and those of the Committee on Conventions and
Recommendations concerning communications alleging violations of human
rights.
(CL).Joint ILOIUnesco Committee of Experts on the Application of the Recom-

mendation Concerning the Status of TeachersL4
The decision to set up this Committee was taken at the fourteenth session of
the General Conference of Unesco (Paris, October-November 1966) and the
167th session of the IL0 Governing Body (Geneva, November 1966). The
Committees terms of reference are to examine the reports received from
governments on action taken by them on the Recommendation concerning
the Status of Teachers (adopted at Paris on 5 October 1966 by a special
intergovernmental conference) and to report thereon to the two bodies which
set it up. In accordance with a decision taken by the IL0 Governing Body
(170th session) and the Executive Board of Unesco (77th session), the Joint
Committee consists of 12 members sitting in their personal capacities and
chosen on the basis of their competence in the principal domains covered by
the Recommendation, each organization designating six members for the
domains falling mainly within its province.
Four sessions of the Committee have been held: (Geneva, 1968; Paris,
1970; Geneva, 1976; and Paris, 1979). In determining its methods of work,
the Committee decided that it could take into consideration information on
implementation of the Recommendation which might be received from na-
tional organizations representing teachers or their employers, and from inter-
national teachers organizations having consultative status with Unesco, with-
out excluding information from other authoritative sources. Information
concerning a particular country is communicated to it for any observations it
may wish to make. The Committee also drew up a questionnaire with a view
to obtaining information on the application of the main provisions of the
Recommendation by the Member States of both organizations. Apart from
these sources, the Committee makes use only of official information con-
tained in United Nations, IL0 and Unesco documents. The Committees
Secretariat (provided by Unesco and the International Labour Office) under-
takes a preliminary analysis of all information received, and this analysis is
then examined by a working group of the Committee. After studying the
information provided, the Committee, in its report, adopts conclusions and
recommendations concerning any studies it may consider necessary on situa-
tions where it feels that the application of the Recommendation is unsatisfac-
tory. The Committees report is then submitted to the governing bodies of
the two Organizations. In the case of Unesco, the report is first studied by
the Committee on Conventions and Recommendations after which it is trans-
mitted, together with the latter Committees recommendations, to the Exec-
utive Board, which in turn, transmits it to the General Conference with the
Boards recommendations.
Several of the Recommendations provisions are directly concerned with
the exercise of human rights, particularly those relating to non-discrimination
in the training and employment of teachers, the right of association of teachers,
etc. Particular mention may be made of Article 80, which stipulates that
Teachers should be free to exercise all civic rights generally enjoyed by
citizens. From this point of view, the Joint Committees report constitutes a
valuable source of information which can influence the evolution of law and
practice in these matters. The Joint Committee has observed, however, that
418 Hanna Saba
the number of Member States replying to the questionnaire is diminishing

and that the replies are often not sufficiently detailed. The report has
nevertheless enabled the Executive Board27 and the General Conferences to
make fairly detailed recommendations on the improvements needed in regard
to application of the Recommendation.
(b). The handling of communications addressed to Unesco in connection

with cases and questions involving the exercise of human rights in the
Organixations spheres of competence.*
The procedure for handling communications alleging violation of human rights
is determined by the text of the Executive Board Decision 104 EX/3.3, adopted
in 1978, and by the practice of the Committee on Conventions and Recom-
mendations.2g Five phases may be distinguished in the handling of communi-
cations according to this procedure.
1. Preparation of the file by the Secretariat

Upon receipt by the Unesco Secretariat of a communication which appears
to concern alleged violations of human rights, the communication is transmit-
ted to a specialized unit for handling communications, which acknowledges
receipt, informing the author of the procedure laid down in Decision 104
EXI3.3, drawing his attention to the conditions of admissibility listed in para.
14(a) of that decision and inviting him to fill in a form.30 At the end of the form
is a declaration by which the author expresses his agreement to the applica-
tion of the procedure. As soon as possible after receipt of the signed form, a
copy is sent to the government concerned informing it that any reply it may
wish to make will be brought to the notice of the Committee and that a
representative of the government concerned may attend the meeting of the
Committee at which the communication will be examined in order to provide
additional information or answer questions asked by members of the Committee.
A file is then prepared by the Secretariat containing a summary of the
communications, the form, any reply from the government and other such
information or documents from the government or the author which may be
necessary for the proper examination of the communication.
2. Examination of the admissibility of the communication

Whether or not the government concerned has replied, the file is transmit-
ted to the Committee, whose first task is to determine if all of the ten
conditions of admissibility set out in para. 14(a) Decision 104 EX/3.3 have
been met. These conditions are the following:
Conditions
(a) Communications shall be deemed admissible if they meet the following
conditions:
*This section has been revised in collaboration with S. Marks on the basis of a chapter by
him to appear in another publication.
(9 the communication must not be anonymous;

(ii) the communication must originate from a person or a group of
persons who, it can be reasonably presumed, are victims of an
alleged violation of any of the human rights referred to in para-
graph (iii) below. It may also originate from any person, group of
persons or non-governmental organization having reliable knowl-
edge of those violations;
(iii) the communication must concern violations of human rights falling
within Unescos competence in the fields of education, science, cul-
ture and information and must not be motivated exclusively by
other considerations;
(iv) the communication must be compatible with the principles of the
Organization, the Charter of the United Nations, the Universal
Declaration of Human Rights, the international covenants on human
rights and other international instruments in the field of human
rights;
(VI the communication must not be manifestly ill-founded and must
appear to contain relevant evidence;
(vi> the communication must be neither offensive nor an abuse of the
right to submit communications. However, such a communication
may be considered if it meets all other criteria or admissibility,
after the exclusion of the offensive or abusive parts;
(vii) the communication must not be based exclusively on information
disseminated through the mass media;
(viii) the communication must be submitted within a reasonable time-
limit following the facts which constitute its subject-matter or within
a reasonable time-limit after the facts have become known;
(ix) the communication must indicate whether an attempt has been
made to exhaust available domestic remedies with regard to the
facts which constitute the subject-matter of the communication and
the result of such an attempt, if any;
w communications relating to matters already settled by the States
concerned in accordance with the human rights principles set forth
in the Universal Declaration of Human Rights and the international
covenants on human rights shall not be considered;
3. Examination of the merits of the communication

Once a communication is declared admissible, the Committee examines its
merits in order to determine whether it warrants further action. If it does
not, it is dismissed and the author and government are notified.31 If it does
warrant further action, the Committees task is to help to bringabout a
friendly solution designed to advance the promotion of human rights falling
within Unescos fields of competence.32
The general terms of this mandate guarantee the Committee the necessary
420 Hanna Saba
flexibility to utilize the confidentiality of the meetings, the presence of the

representative of the government concerned and the additional information
which the Director-General may place at the disposal of the Committee to
encourage the government to resolve the issue. The effectiveness of this
phase of the procedure, of course, depends on the nature of the claim and the
attitude of the government concerned. It should be borne in mind that, at any
stage of the procedure, even before the Committee has begun considering
admissibility, the Director-General can intercede on behalf of the victim. This
role is defined as initiating consultations, in conditions of mutual respect,
confidence and confidentiality, to help reach solutions to particular problems
concerning human rights. During the Committees consideration of either
the admissibility or merits, it can avail itself of the information at the disposal
of the Director-General,4 keep a communication on its agenda while seeking
additional informationj5 or even, in exceptional circumstances and with the
prior approval of the Executive Board, hear the author of the communication
or other qualified persons.
The language of the preamble of Decision 104 EX/3.3 is particularly rele-
vant to the examination of the merits and the search for a friendly solution.
After recalling the provision of Unescos Constitution on non-intervention,7
the preamble states that, in matters concerning human rights within its
fields of competence, Unesco should act in a spirit of international co-oper-
ation, conciliation and mutual understanding, and recalls that IJnesco should
not play the role of an international judicial body.x This provision accurately
reflects the approach taken by the Committee in dealing with governments
concerned with communications declared admissible, an approach based es-
sentially on a search for a dialogue.
4. Report to the Executive Board

According to paragraph 15 of Decision 104 EXi3.3, the Committee shall
submit confidential reports to the Executive Board at each session on the
carrying out of its mandate under the present decision, The paragraph
stipulates further that these reports shall contain appropriate information
arising from its examination of the communications which the Committee
considers useful to bring to the notice of the Executive Board as well as
recommendations which the Committee may wish to make either generally
or regarding the disposition of a communication under consideration.
The Committee has established the practice of reporting on every commu-
nication examined at the session, whether it has been declared admissible or
not. The report usually sets out for each one a brief summary of the facts, the
views of the Committees members and of the representative of the govern-
ment concerned, and the decision reached by the Committee. The decision on
admissibility is either that the communication is admissible, inadmissible,
suspended (for further information) or postponed. As regards admissible
communications, the Committee either reports its decision to apply the spe-
cial procedure concerning disappeared persons or to request further informa-

tion from the government concerned, the author of the communication, or
both, or the Committee recommends appropriate action. It can, for example,
request the Executive Board to invite the Director-General to address to the
government concerned an appeal for clemency or for the rapid release of a
detained person. The Board examines the report of the Committee in closed
meetings.
Communications alleging violations of human rights fall into either one or
both of two categories defined in the Decision. The first category encom-
passes communications which concern individual and specific cases of human
rights violations. 4oThe second category encompasses communications which
concern questions of massive, systematic or flagrant violations resulting
either from a policy contrary to human rights applied by a State or from an
accumulation of individual cases forming a consistent pattern.41
Although there are as yet no precedents for the examination by the Board
of questions concerning large-scale violations of human rights, Decision 104
EXi3.3 provides that communications transmitted to the Board by the Com-
mittee which testify to the existence of such a question should be consid-
ered by the Executive Board and the General Conference in public meetings.4
The fact that the procedure deals with both individual and large-scale
violations is no doubt one of its more original features and one of the reasons
for the success of the negotiation process which led its adoption. Indeed, as
the debates which preceded the adoption of Decision 104 EXi3.3 demonstrated,a
certain Board members felt that only large-scale violations of human rights
should be considered, whereas others felt that the Organization should be
authorized to deal with individual cases.
The procedure does not specify at what stage a communication is to be
qualified as concerning only a specific case, rather than a pattern of human
rights violations.
It will be recalled that the public examination of communications involving
questions concerns both the Executive Board and the General Conference.
5. The procedure before the General Conference

There is no indication in Decision 104 EX13.3 as to what procedure the
General Conference is to follow with regard to communications concerning
allegations of human rights violations. Should a communication concerning a
question of large-scale violations be brought before the General Conference,
it would most likely be under an item included in the agenda by the Board.44
There are no precedents to date.
The Committee started examining communications at its session of Sep-
tember 1978. It has been meeting since then in April and August or Septem-
ber. Some 400 communications have been handled according to the newly
established procedure.
422 Hanna Saba
The legislative measures taken by Unesco to define human rights and the
resulting obligations for governments and perhaps even more its activities
for the purpose of supervising the application of the standards adopted, have
only recently been systematized and become a regular feature of its practice.
However, it is now quite apparent that the Organization has become fully
aware of the responsibilities incumbent upon it in this field. This awareness is
all the more timely in that the extraordinary development of science and
technology currently raises problems which need to be resolved at the level
of the entire world community. International law must protect the individual
against attacks upon his privacy and his intellectual and moral independence
resulting from the abusive use of new techniques or certain forms of advertis-
ing and publicity; it must also protect him against the growing and serious
dangers of the total pollution of his environment, following wholesale
industrialiiation.
It has become necessary more than ever before to draw up a code for
science and technology defining their moral purpose and formulating princi-
ples governing their utilization in the exclusive service of man with a view to
the harmonious development of mankind at the spiritual and material levels.
The coming years open up vast and bright prospects for Unescos standard-
setting activities, as it does for those of other major organizations of the
United Nations system.
ANNEX
LIST OF NORMATIVE INSTRUMENTS ADOPTED EITHER

BY THE GENERAL CONFERENCE OR BY
INTERGOVERNMENTALCONFERENCESCONVENED
SOLELY BY UNESCO OR JOINTLY WITH OTHER
INTERNATIONAL ORGANIZATIONS OF RELEVANCE
TO HUMAN RIGHTS
A. CONVENTIONS AND AGREEMENTS
Universal Copyright Convention, with Appendix Declaration relating to Ar-

ticle XVII and resolution concerning Article XI. 6 September 1952.
Protocol 1 annexed to the Universal Copyright Convention, concerning the

application of that Convention to the works of stateless persons and refugees.
6 September 1952.

application of that Convention to the works of certain international organiza-
tions. 6 September 1952.

effective date of instruments of ratification or acceptance of, or accession to,
that Convention. 6 September 1952.
Convention for the Protection of Cultural Property in the Event of Armed

Conflict, with Regulations for the Execution of the Convention. 14 May 1954.
Protocol for the Protection of Cultural Property in the Event of Armed

Conflict. 14 May 1954.
Convention against Discrimination in Education. 14 December 1960.
Protocol instituting a Conciliation and Good Offices Commission to be Re-

sponsible for Seeking the Settlement of any Disputes which may Arise be-
tween States Parties to the Convention against Discrimination in Education.
10 December 1962.
Convention on the Means of Prohibiting and Preventing the Illicit Import,

Export and Transfer of Ownership of Cultural Property. 14 November 1970.
Universal Copyright Convention as revised at Paris on 24 July 1971 with

Appendix Declaration relating to Article XVII and resolution concerning
Article XI. 24 July 1971.
Protocol 1 annexed to the Universal Copyright Convention as revised at

Paris on 24 July 1971 concerning the application of that Convention to works
of stateless persons and refugees. 24 July 1971.
Protocol 2 annexed to the Universal Copyright Convention as revised at

Paris on 24 July 1971 concerning the application of that Convention to the
works of certain international organizations. 24 July 1971.
Convention concerning the Protection of the World Cultural and Natural

Heritage. 16 November 1972.
B. RECOMMENDATIONS
Recommendation concerning the Most Effective Means of Rendering Mu-

seums Accessible to Everyone. 14 December 1960.
Recommendation against Discrimination in Education. 14 December 1960.
Recommendation concerning Technical and Vocational Education. 11 Decem-

ber 1962.
424 Hanna Saba
Recommendation on the Means of Prohibiting and Preventing the Illicit Ex-

port, Import and Transfer of Ownership of Cultural Property. 19 November
1964.
Recommendation concerning the Status of Teachers. 5 October 1966.
Recommendation concerning the Preservation of Cultural Property Endan-

gered by Public or Private Works. 19 November 1968.
Recommendation concerning the Protection, at National Level, of the Cul-

tural and Natural Heritage. 16 November 1972.
Recommendation concerning Education for International Understanding, Co-

operation and Peace and Education relating to Human Rights and Funda-
mental Freedoms. 19 November 1974.
Revised Recommendation concerning Technical and Vocational Education.

19 November 1974.
Recommendation on the Status of Scientific Researchers. 20 November 1974.
Recommendation on the Development of Adult Education. 26 November

1976.
Recommendation on Participation by the People at Large in Cultural Life

and their Contribution to it. 26 November 1976.
Recommendation concerning the Safeguarding and Contemporary Role of

Historic Areas. 26 November 1976.
Recommendation concerning the International Exchange of Cultural Prop-

erty. 26 November 1976.
Recommendation for the Protection of Movable Cultural Property. 28 No-

vember 1978.
Recommendation concerning the Status of the Artist. 27 October 1980.
C. DECLARATIONS
Declaration of the Principles of International Cultural Co-operation. 4 No-

vember 1966.
Declaration of Guiding Principles on the Use of Satellite Broadcasting for the

Free Flow of Information, the Spread of Education and Greater Cultural
Exchange. 15 November 1972.
Declaration on Race and Racial Prejudice. 27 November 1978.
Declaration on Fundamental Principles concerning the Contribution of the

Mass Media to Strengthening Peace and International Understanding, to the
Promotion of Human Rights and to Countering Racialism, Apartheid and
Incitement to War. 28 November 1978.
NOTES
1. Article I, para. 1, of the Convention creating the United Nations Educational, Scien-
tific and Cultural Organization.
2. The following may be cited as examples: Ihe Rnce Qz~~tion in Modems Science,
Unesco. Paris, 1956; Race as News, Unesco, Paris, 1974; Racism and Apartheid in South-
err1 A,ftica (South Qrica and Namibia), Unesco, Paris, 1974, etc.
3. See The Birthright qfMa?r, Unesco, Paris, 1968.
4. See Article 1, paragraph 2 of the Constitution.
5. See Article 4, paragraph 4, of the Constitution.
6. A complete collection of the normative instruments of Unesco will be published soon.
The list of those instruments which are particularly relevant to human rights appears as an
annex to this chapter.
7. See also Jean De Breucker, Pour les vingt ans de la Convention de la Haye du 14 mai
1954 pour la protection des biens culturels, in Revue beige de droit international, Vol. XI
(1975), pp. 525-547; and Information on the Implementation of tke Conz~entiov for the
Protectiorr ofCz&cral Prqnertv in Ike Event @Amed Co@?, Unesco document CL/MD/41
(1979).
8. See H. Saba, La Convention et la Recommendation concernant la lutte centre la
discrimination dans le domaine de lenseignement, in Annuaire.fmnqais de Droit Zntema-
tional, 1960, pp. 646-652.
9. See P. Merens, Lapplication de la Convention et de la Recommandation de lUNESC0
concernant la lutte centre la discrimination dans le domaine de lenseignement: un bilan
provisoire, in RDHIHRJ, 1968, Vol. I, pp. 91-108.
10. The most recent reports of the Committee on the Convention and Recommendation
on the third consultation were submitted to the General Conference at its twentieth session
(1978) in document 20 C/40 and to the twenty-first session (1980) in document 21 C/27.
11. See in this connection T. Modeen, La protection internationale des minorities: les
Iles diAland, in RDHIHRJ, Vol. VI, 1973, pp. 287-302.
12. The text of this Statement along with the four others to be mentioned are reprinted
in Unesco, Ueclarafio)z art Race and Racial Zwjudice, 23 (1979) [Hereafter cited as
Declarafio7ll.
13. Ibid., p. 29
14. Ibid., p. 35
15. Ibid., p. 41
16. Resolution 17 C/10.1, para. 14
17. Article 1, para 2. See also the Explanatory report on the draft Declaration on Race
and Racial Prejudice, document 20 C/18 Annex, page 1. [Hereafter Explanatory Re-
426 Hanna Saba
port]. Drawing on the allusion made to right to development as a human right by the UN
Commission on Human Rights in its resolution 4 (XxX111), the drafters also consecrated
the new concept of right to full development. See Article 3; Explanatory Report, p. 3.
18. Article 2, para 2. See also Explanatory report, page 3. The implications of the terms
used in the light of the UN Charter were clearly in the minds of the drafters of the text.
19. Art. 9, para. 1. See also Explanatory Report, p. 8.
20. Art. 4, para. 2. See also Explanatory Report, p. 4.
21. Declaration, p. 18
22. Ibid., para. 1. (c)
23. Ibid., para. 2. (a)
24. Information given in this sub-section is mainly drawn from documents 100 EXICR.2
and 102 EXI19 prepared by Unescos Secretariat.
25. Since no definition was given of other authoritative sources, the Secretariat of the
Joint Committee has not considered itself entitled to pass on to the Committee reports from
organizations, particularly research organizations, that did not fall into the other categories
mentioned, nor communications from individuals. In principle, the latter are handled in
accordance with the procedure laid down by 77 EX/Decision 8.3, which will be examined
below.
26. 19 C/23 and CEART/IIIi1976/10, paragraph 171.
27. 100 EX/Decision 5.2.1, based on documents 100 EXI13 and 19 C/23, containing the
Joint Committees report, and document 100 EXI14, containing the report of the Committee
on Conventions and Recommendations in Education.
28. 19 C/Resolution 1.171.
29. For a summary of the history, to 1976, of the communications received and of the
recommendations for in procedure, see Unesco Doe. CR.2 (1976). For a detailed analysis of
the question see Unesco Dot. 102 EX/19 (1977)
30. The text of the standard letter to the authors of communications and the form are
reproduced in Unesco, The Executive Board of Unesco p. 53 (1979).
31. Decision 104 EXi3.3, para. 14 (j).
32. Ibid., para. 14 (k).
33. Ibid., para. 8(b), See also 103 EX119 para. 47.
34. 104 EXiDecision 3.3, para. 14(f).
35. Ibid., para. 14(h)
36. Ibid., para. 14(g), referring to Rule 29 of the Board Rules of Procedure, which provide
for this possibility.
37. Ibid., para. 6.
38. Ibid., para. 7.
39. See e.g., the announcement concerning the private meeting held on 17 October 1979.
Unesco Dot. 108 EX/Decisions, at 43 (1979).
40. Decision 104 EX13.3, para. 10.
41. Ibid.
42. Ibid., paras. 17&18.
43. Unesco Dot. 102 EX/SR. 5,6,7,8,9,10&17 (1977); Unesco Doe. 103 EXIWPIHRIINF 1
& Adds, 1 & 2, Unesco Dot. 103 EX/18 & Unesco Dot. 103 Exil9 (1977).
44. Art. 11 of the Rules of procedure of the General Conference allows the Director
General, the Executive Board or Member States to request the inclusion or to include
supplementary items to the agenda established according to arts. 9&10. Standing items or
supplementary items could include such questions.
45. For further information on the functioning of this new procedure see Document 21
C/13, paragraphs 59-67.
14 The Implementation
Humanitarian Law
of
Christian Dominick
1. THE SYSTEM OF SUPERVISION INSTITUTED BY

THE GENEVA CONVENTIONS
The law of armed conflicts is largely inspired by humanitarian considera-

tions. Its main object is to endeavour to contain military necessities-namely,
the search for effectiveness in operations undertaken against the opposing
party- within the narrowest possible limits, in order to protect to a certain
extent the lives, health and dignity of human beings.2 It can therefore be
stated that humanitarian rules include not only those governing the conduct
of operations- methods and means of combat-but also those concerning the
victims of conflicts (the wounded, the sick, prisoners and the civilian popula-
tion). Thus, the Hague law, as it is traditionally known, should, to a large
extent, be included in the notion of international humanitarian law, like the
Geneva law, even though, sometimes, the latter alone has been placed in the
category of humanitarian law. Moreover, it will be noted that while the
Hague and Geneva laws have for a long time presented obvious points of
contact (the question of prisoners of war is one example, among others), the
recent tendency is towards a more thorough integration of these two groups
of complementary norms, as is borne out more particularly in the two Addi-
tional Protocols to the Geneva Conventions-Protocol I relating to the pro-
tection of victims of international armed conflicts and Protocol II relating to
the protection of victims of non-international armed conflicts-adopted in
1977 by the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts, which held
four sessions in Geneva between 1974 and 1977. The Protocols entered into
force on December 7, 1978. The first contains provisions relating to methods
of combat and means likely to be used by the belligerents, which is a field that
comes traditionally under Hague law.
While the definition of international humanitarian law should not be limited
solely to the rules of the humanitarian Conventions, it is to be noted that the
428 Christian Dominice
Geneva Conventions of 1949, as contrasted with the Conventions concerning

the conduct of hostilities, establish international machinery for the purpose of
ensuring their implementation. While this machinery, established by the
general provisions of the four Conventions of 1949, is at the centre of the
present study, consideration is not given to the question of the institution of
criminal proceedings against persons committing infractions of the Conventions.
Common article 1 of the four Conventions of 1949 stipulates: The High
Contracting Parties undertake to respect and to ensure respect for the pres-
ent Convention in all circumstances. This is an important reminder which
leaves no doubt as to the role and function of the machinery instituted by the
Conventions, which appears essentially as a procedure for supervision rather
than a system of application.
The texts which call for particular attention are articles 8, 9 and 10 of the
first three Conventions and 9, 10 and 11 of the fourth. They establish what
may be described as a system possessing several tiers.
First of all, it is stipulated that the Conventions shall be applied with the
co-operation and under the scrutiny of the Protecting Powers whose duty it is
to safeguard the interests of the Parties to the conflict (art. S/8/8/9).
Second, it is stated that the High Contracting Parties may at any time
agree to entrust to an organization which offers all guarantees of impartiality
and efficacy the duties incumbent on the Protecting Powers by virtue of the
present Convention (art. 10/10/10/11, first paragraph). What is being referred
to here is the organization acting in place of a Protecting Power envisaged
in various proposals made on several occasions, but of which no concrete
example has so far been afforded by practice.
Lastly, the Conventions provide for the establishment of a substitute for
cases where the persons protected by the Conventions do not benefit or cease
to benefit from the activities of a Protecting Power or of an organization such
as that referred to above: the Detaining Power must then request a neutral
State, or such an organization, to undertake the functions incumbent on the
Protecting Powers by virtue of the Conventions (art. 10/10/10/11, second para-
graph). If protection cannot be arranged accordingly, the Detaining Power
shall request or shall accept the offer of the services of a humanitarian orga-
nization, such as the International Committee of the Red Cross, to assume
the humanitarian functions performed by Protecting Powers under the Con-
ventions (art. 10/10/10/11, para. 3).
In addition, it is important to emphasize that article 91919110states that the
provisions of the Conventions constitute no obstacle to the humanitarian
activities which the ICRC (or any other impartial humanitarian organization)
may undertake for the protection and relief of the beneficiaries of the Con-
ventions. In other words, it should not be overlooked that while the ICRC, as
the final substitute, appears at the bottom of the list in the system just
described, it also holds a special or parallel position, by virtue of its specific
mission, expressly identified by the texts.7
The Implementation of Humanitarian Law 429
It is therefore worthwhile examining in turn, from the point of view of the

implementation of the humanitarian Conventions, the role of the Protecting
Powers, including the organization acting in their place and the substitute,
and then the functions and terms of intervention of the ICRC.
2. THE PROTECTING POWERS AND THEIR SUBSTITUTE

(a) The institution of the Protecting Power
The institution of the Protecting Power is not a creation of the humanitarian
Conventions. In referring to the Protecting Powers whose duty it is to
safeguard the interests of the Parties to the conflict, the Conventions of
1949, following the precedent created by Article 86 of the Geneva Convention
of 1929 (Code of prisoners of war), take as their foundation an institution long
enshrined in the law of nations. Thus a practice had arisen whereby a State
(the State of origin), in the event of its breaking off diplomatic relations and,
more particularly, engaging in war, with another State (the State of resi-
dence), would entrust to a third State responsibility for protecting its inter-
ests and those of its nationals in the State of residence.
This practice, established by custom, to which the belligerents of the last
two world wars had great recourse, was enshrined in treaty form in article 45
of the Vienna Convention of 1961 on diplomatic relations.
It is worthwhile briefly recalling the main features of the institution of the
Protecting Power:
Appointment of a Protecting Power presupposes a three-sided agreement. In other words,

the State of origin must ensure that the Protecting Power agrees to accept the mandate and
that the State of residence agrees to recognize the Protecting Power in that capacity.
The Protecting Power is the mandatory of the State of origin. It acts as a delegate of the
latter and consequently cannot assert any more rights than are enjoyed by its mandator
vis-a-vis the State of residence.
In discharging its mandate, the Protecting Power benefits, however, from a certain
measure of discretion, notably as regards the manner in which it proposes to act upon the
instructions it receives from the State of origin. It is not a mere organ of transmission.
Lastly, there is nothing to prevent the same State being assigned the functions of Pro-
tecting Power by two States in their mutual relations (system of the double mandate). At
the time of the Indo-Pakistani conflict in 1971, the Helvetic Confederation (Switzerland)
exercised such a double mandate. In addition, those functions that may be described as
regular functions (in contrast with those resulting from the Geneva Conventions) exercised
by the Protecting Power may vary to a large extent. The Protecting Power may not only
discharge various administrative functions (supervision of buildings, establishment of acts,
etc.) but also may carry out more specifically political activities, such as requests for
explanations, protests, etc., or representations on behalf of the nationals of the State of
origin.
While it is not appropriate to dwell at length here on the regular functions

of the Protecting Powers-those customarily referred to under the heading
of the Vienna mandate-it is nevertheless worth stressing that this man-
430 Christian Dominick
date may be fairly heavy for the State that assumes it, especially when it is a
small State. It may, in addition, be sometimes awkward to carry out, espe-
cially since, be it not forgotten, the Protecting Power is also concerned with
the protection of its own interests and those of its nationals.
(b) The Protecting Powers in the framework of the Geneva Conventions

It is understandable that, in order to facilitate the effective application of the
Geneva Conventions, the High Contracting Parties in 1949, taking account of
the positive experience resulting from Article 86 of the 1929 Convention,
decided to have recourse to the Protecting Powers, an institution already
firmly established by international practice, while at the same time not exclud-
ing the development of other institutions.
(i) THEORIGINANDLEGALNATUREOFTHEMANDATEOFTHE~R~TECTINGPOWER
Since they do not create a new institution but refer to a customary practice
between parties to an armed conflict, it is to be expected that the Conven-
tions should pass over in silence the designation of Protecting Powers. The
principles emerging from international practice consequently remain valid
here, and particularly the necessity of the three-sided agreement. When a
belligerent has entrusted to a third State (a neutral State), with its agree-
ment, the defence of its interests with the adversary State, and the latter has
accepted the Protecting Power in that capacity, the arrangement provided
for by the Geneva Conventions is in place. In this connection, the following
remarks need to be made.
(1) It seems clear from the text of article B/8/8/9 that, once a Protecting
Power has been designated and accepted, it is automatically entrusted, in
addition to its regular tasks, with the functions assigned to it by the Conven-
tions. This does not necessarily mean to say that the Vienna mandate and
the Geneva mandate cannot be dissociated. Indeed it can be envisaged,
even if such an eventuality remains fairly theoretical, that a party to the
conflict may wish to make one Power responsible for safeguarding its political
and diplomatic interests and another for ensuring that the Geneva Conven-
tions are respected. This would be possible, provided that the adversary
party was in agreement. In addition, it is important not to forget the terms of
the first paragraph of article 10/10/10/11, which specifically provides that the
duties incumbent on the Protecting Powers may, with the agreement of the
parties, be entrusted to a particular organization. In other words, it is per-
fectly possible for the Geneva mandate to be covered by a special agreement
aimed at entrusting it to a State or to an organization distinct from the
neutral State responsible for safeguarding the interests of the originating
Power. However, if such an agreement is not reached, and if there exists a
Protecting Power accepted as such by the State of residence, it is automati-
cally assigned, ipso jure, the duties resulting from the Geneva Conventions.
Such is undoubtedly the sole interpretation authorized by the texts and which
corresponds to the desire of the Contracting Parties when they resolve to

have recourse to an institution enshrined in general international law.
(2) Should it be deduced from the imperative character of the text that
there exists an obligation, for the belligerent States, to designate a Protect-
ing Power? It would seem, rather, that the basic premise was that the parties
to the conflict would be naturally led to do so in their own interests, and this
was an additional reason for the Geneva mandate being added to the regular
diplomatic mandate. It should be pointed out, however, that the designation
of a mandatory Power (Vienna mandate) is optional, with the result that
uncertainty remains as to the obligation to designate a Protecting Power for
the purpose of implementing the humanitarian Conventions.
(3) As has already been emphasized, the powers of the Protecting Power
are delegated to it by the State of origin, the latter being the mandator of the
former. Is this exactly the case in respect of the application of the Conven-
tions of 1949? The commentators insist on the fact that the Protecting Power
is a sort of general mandatory. In other words, while its power to act as a
Protecting Power is indubitably founded upon the particular mandate en-
trusted to it by a specific State, its responsibilities under the Geneva Con-
ventions are assigned to it by all of the Contracting Parties. This is certainly
important in respect of the general conception of the supervision and author-
ity which the Protecting Powers may claim to be entitled to exercise.
(ii) THEMEAN~AVAILABLET~THE~R~TECTINGPOWER
The Protecting Power acts through the intermediary of its representatives or

delegates. These of course are primarily its diplomatic and consular staff,
appointed in accordance with established rules and practice. However, the
ease may arise where the Protecting Power does not have a sufficient number
of staff at its disposal. The Geneva Conventions have consequently provided
for the possibility of the Protecting Power having recourse to the services of
delegates appointed from amongst its own nationals or the nationals of other
neutral Powers. It is stated, however, that such persons shall be subject to
the approval of the Power with which they are to carry out their duties (art.
8181819,first paragraph).
(iii) THEMISSIONENTRUSTEDT~THE~ROTECTINGPOWER
Common article 8 (article 9 of the 4th Convention), as has been seen, stipu-
lates: The present Convention shall be applied with the co-operation and
under the scrutiny of the Protecting Powers. . How is this mission to be
considered? It is to be noted, first of all, that, in addition to this general
provision, each of the Conventions of 1949 contains specific provisions defin-
ing the circumstances and modalities of the intervention by the Protecting
Powers. The number of these specific provisions, however, varies a great
deal from one Convention to another. Thus, apart from the reference to them
in the general provisions common to the four Conventions, the Protecting
Powers are mentioned only in two articles in the first Convention and one in
the second, while numerous specific tasks are assigned to them in the third
and fourth. No doubt this is on account of the different purposes of these
texts. Clearly, specific and detailed tasks and responsibilities can more easily
be assigned to the Protecting Powers in the case of the protection of pris-
oners of war, or of the civilian population, than in that of the protection of
wounded, sick and shipwrecked persons in ,the combat zone.
The fact remains that the question immediately arose as to whether the
role of the Protecting Powers is strictly circumscribed by the specific provis-
ions relating to them or whether, by virtue of article 8181819,it should be
understood as being appreciably more far-ranging. Persuasive arguments,
based both on principle and on the texts, support the latter interpretation.
Thus, it must be acknowledged that the tasks of the Protecting Powers cover
all that concerns the implementation and observance of the prescriptions and
obligations resulting from the four Conventions, subject to the two restric-
tions defined in the texts themselves.
The first, which at least in its first part, is not so much a true restriction as
a simple reminder of the rules of general international law, is common to the
four Conventions. It results from the third paragraph of article 8181819,ac-
cording to which: The representatives or delegates of the Protecting Powers
shall not in any case exceed their mission under the present Convention.
They shall, in particular, take account of the imperative necessities of secu-
rity of the State wherein they carry out their duties. It is obvious that the
agents of the Protecting Powers cannot either exceed their mission or exer-
cise an activity harmful or dangerous to the State of residence. Moreover,
that State can demand that any representatives or delegates not exercising
their functions with the sole objective of ensuring the application of the
Conventions be recalled. However, this provision should not provide grounds
for unduly restricting the activities of the Protecting Powers.
The second restriction is contained only in the first two Conventions. It is
worded as follows: Their activities shall only be restricted as an exceptional
and temporary measure when this is rendered necessary by imperative mili-
tary necessities. It is to be noted however that provisions of the same kind
are contained in the other two Conventions, concerning visits to camps and
places of internment, which fortunately gives them a more limited bearing.
The danger presented by such a provision should indeed be emphasized, since
it may easily serve as an excuse for unduly impeding the activities of the
Protecting Powers, even though it is clearly worded in such a way as to guard
against its being invoked lightly.
It now remains necessary to define more specifically the mission of the
Protecting Power. The decisive text, as we have seen, is that which lays
down that each of the Conventions shall be applied with the co-operation and
under the scrutiny of the Protecting Powers. What exactly does this mean?
It should not be forgotten that the primary responsibility for implementa-
tion of the Conventions falls to the parties to the conflict. Most of the obliga-
tions resulting from the Conventions are stated to be their responsibility,
with the result that the scale and importance of activities of co-operation
are less than those relating to scrutiny. The Protecting Power co-operates
each time that it assists a party to the conflict in discharging its obligations,
or carries out acts expressly assigned to it. Under this heading can also be
included relief activities-the forwarding of foodstuffs and medicines, etc.
-on behalf of protected persons, such activities being intended to help en-
sure that certain obligations relating to the treatment of persons are respected.
As for activities under the heading of scrutiny, which was a subject of
considerable discussion at the Diplomatic Conference of 1949, these should be
understood as corresponding to the right--and the obligation-of the Pro-
tecting Power to verify that the parties to the conflict respect the obligations
imposed on them by the Conventions. A large number of specific provisions
in the third and fourth Conventions provide illustrations of such supervisory
activities, * but, as has already been stressed, they do not constitute an
exhaustive list of all the possible forms of supervision. In the case of the first
two Conventions, the problems are more complex since it becomes necessary
for the Protecting Power to be present on the battlefield, with the units
engaged in combat, or on board ships. This is both an onerous and difficult
task. What is certain is that the State of residence is obliged to recognize the
right of the Protecting Power to carry out checks, not only in the camps and
places of internment, but also wherever there are persons protected by the
Conventions, be it on the battlefield or in occupied territories.
What might be the results of these supervisory activities? It is probable
that they constitute an incentive, for the parties to the conflict, to respect the
Conventions. The Protecting Power may set down the results of its investi-
gations in reports addressed to the State of origin, and notify the State of
residence of the protests of the former. However, by virtue of the margin of
discretion allowed it, which is further reinforced by its status as a general
mandatory, it may prefer not to transmit all its reports to the State of origin
if the interests of the persons protected seem to it to be better served by
discreet action rather than by measures likely to increase tension.
Can it, on its own authority, intercede with the Government of the State
of residence in order to deplore violations of the Conventions and to request
that they be halted? This can unhesitatingly be stated to be the case, since
responsibility for scrutiny, within the meaning of article B/8/8/9, is both en-
trusted to and imposed upon the Protecting Power by all of the Parties to
the Conventions. Any supervisory activity not involving the right and the
duty to draw the attention of a party to the conflict to its violations would
be meaningless. It is important to stress, however, that in carrying out
its supervisory activities the Protecting Power should not be so much a
censor-that is not its role-as a means of effective support for protected
persons.
(c) The system of Protecting Powers and the reality of armed conflicts
Article 8181819of 1949, despite certain shortcomings of a formal rather than
substantive nature, was generally hailed as an important advance. There was
reason to rejoice because genuine machinery of scrutiny was thereby estab-
lished in a particularly sensitive area. And such rejoicing was all the more
justified in that the experience of the Second World War had shown that the
condition of prisoners who had benefited from the system of the 1929 Con-
vention had been incomparably better than that of prisoners to which that
system had not been applied.
However, the fact must be faced that the system of Protecting Powers has
not lived up to expectations. Until recently, although Protecting Powers had
been present in the Suez conflict (1956) and in the Goa conflict (1961), the
system of implementation sought by the Geneva Conventions had been scarcely
used. Attempts were made on various sides to explain why this was so,14
among which mention may be made of the following reasons:
-many conflicts were non-international armed conflicts and hence did not entail the appli-
cation of the system of Protecting Powers;
-owing to the fact that the institution of the Protecting Power serves to fill the gap left
once diplomatic relations have been broken off, no Protecting Power was appointed in
certain conflicts in which the belligerents had not broken off their diplomatic relations, or in
other conflicts involving States one of which was not recognized by the others;
-mention was also made of other reasons of a practical kind, such as for instance the brief
duration of certain conflicts or the unwieldiness of the system of Protecting Powers.
These observations led to various proposals being made, the purpose of

which was to make improvements in the system of the 1949 Conventions.
These will be dealt with subsequently.
It should be pointed out, however, that use was made of the system of the
Protecting Power in the Indo-Pakistani conflict of December 1971, linked to
the events which led to the secession of eastern Pakistan to form the indepen-
dent State of Bangladesh. l5 During the agitated period from the proclamation
of independence of Bangladesh (26 March 1971) to the outbreak of hostilities
between India and Pakistan, the Swiss Confederation had occasion to exer-
cise its good offices. Its co-operation proved to be useful in successfully
bringing about the repatriation of the members of two diplomatic missions
which had been closed in Dacca and Calcutta, an operation which was all the
more complicated in that a number of Pakistani officials in Calcutta had
declared their allegiance to Bangladesh. Immediately after the breaking off
of diplomatic relations Switzerland was instructed to safeguard Pakistani
interests in India and Indian interests in Pakistan, It thus assumed a double
mandate, a situation with precedent during the Second World War. Switzer-
land thus performed useful services of a diplomatic character, such as the

exchange of diplomats, the establishment of numerous documents, and a
good offices mission which promoted the resumption of direct contacts be-
tween the two opposing parties.
There remained the problem of the application of the Geneva Conventions
which was further complicated by the emergence of a legal controversy.
Switzerland contended that, in being chosen as the mandatory State, it was
simultaneously assigned the duties and prerogatives of the Protecting Power
within the meaning of the 1949 Conventions. It considered in particular that
its agents should be able to visit prisoners camps. In the view of the Swiss
Government, based on article 8181819,the Vienna mandate entailed ipsojure
the Geneva mandate, unless the parties to the conflict had agreed to en-
trust the Geneva mandate to a substitute organization or to another neutral
State, which had not occurred in this case.
While Pakistan did not raise any objections-it held only a small number of
prisoners-the Indian Government was opposed to this view. It held that the
Vienna and Geneva mandates were distinct from each other, and that it had
authorized Switzerland to exercise only the former. It added that the Paki-
stani prisoners of war captured on the eastern front had surrendered to the
joint command of the Indo-Bengali troops, that they were therefore held
jointly by the two countries and that the mandate entrusted by Pakistan to
Switzerland did not cover Bangladesh.
In fact, the Pakistani prisoners taken on the western front were able to be
visited by representatives of Switzerland. This being so, the view may be
taken that this controversy concerning the Geneva mandate should not be
dissociated from its particular political context in which the question of the
recognition of Bangladesh by the other States, and Pakistan in particular,
played a cardinal role for India.
The fact remains that, while maintaining its legal stand, and without ceas-
ing to enjoy good relations with the Indian Government, the principal role
played by Switzerland consisted of the use of its good offices. This enabled it
to do useful humanitarian work. In a subsequent agreement between India
and Pakistan, in 1973, concerning the repatriation of various categories of
persons, Switzerland was requested by the three States concerned to assist
in its implementation. It accepted that responsibility and contributed, in
collaboration with the ICRC and the Office of the United Nations High
Commissioner for Refugees, to the gradual repatriation of the various per-
sons referred to in the agreement.
What lessons can be drawn from this experience?
The controversy concerning the Geneva mandate, which seems on the
basis of the Geneva Conventions of 1949 and in the absence of any agreement
concerning a substitute organization, automatically to complement the Vi-
enna mandate, is disturbing. At the very least, it reveals the obstacles still
standing in the way of a system of supervision which requires intervention by
another State, and particularly when it is the mandatory of the opposing

party. This is a handicap from which the ICRC does not suffer, although its
responsibilities are, in any event, more limited. All the same, in the case of
the Indo-Pakistani conflict of 1971, it may be noted that the controversy
concerning the Geneva mandate would not perhaps have been quite so acute
had it not been for the problem relating to the recognition of Bangladesh. The
mandate of the Protecting Power was able to be exercised in regard to
prisoners from the western front, from which it might be adduced that the
underlying principle was not necessarily being questioned. However, care
must be taken not to jump to hasty conclusions in this matter.
Experience in the Bangladesh case seems to confirm that, as was shown
earlier, the institution of the Protecting Power is severely handicapped and
that it is based on the system of traditional diplomatic relations. Each time
that, in one form or another, a question of recognition is being disputed
between the parties to a conflict, the resulting political problems hinder the
appointment of a Protecting Power or the full exercise of its mandate. In the
Bangladesh case Switzerland found itself at a particular moment in an awk-
ward situation, since it was being urged by India to recognize Bangladesh
and by Pakistan not to do so. Its freedom of decision in this matter, as a
sovereign State, was to a certain extent limited by its obligation to jeopardize
as little as possible the exercise of its mandate. In addition, of course, the
problem of recognition was all the more difficult since Pakistan did not intend
to appoint the mandatory State in its relations with the secessionist entity.
While certain shortcomings of the system of Protecting Powers came to
light, it is however important to stress that the 1971 conflict also revealed its
benefits. The speed with which the Protecting Power was appointed and was
able to get to work reveals the fundamental quality of the system: it is based
upon an existing diplomatic infrastructure. The representatives of the Pro-
tecting Power are on the spot, they are familiar with the country, they have
their contacts with the administration, and they benefit from a status which
facilitates their task. No other body can offer these advantages to the same
extent. No doubt humanitarian organizations sometimes have possibilities of
action which are denied the Protecting Power, owing to its being a State, and
a mandatory State. This brings out the complementary character of the two
institutions, it being noted in addition that the diplomatic efforts of the Pro-
tecting Power, through the medium of its good offices, appear on certain
occasions to be such as to facilitate the task of humanitarian organizations in
the field.
(d) Organixations acting in place of and as substitutes for Protecting Powers
(i) ORGANIZATIONS ACTING IN PLACE OF PROTECTING POWERS
In stipulating, in the first paragraph of article 10/10/10/11, that the contract-

ing States may at any time agree to entrust to an organization which offers all
guarantees of impartiality and efficacy the duties incumbent on the Protect-

ing Powers, the Conventions of 1949 offer to the parties to a conflict the
possibility of having recourse to a special organization, rather than to a
neutral State.
The text is set out in terms sufficiently broad to allow of various solutions.
Thus, the parties to the conflict may, as soon as it breaks out, and even if
they appoint other mandatory Powers to safeguard their interests, agree to
entrust the Geneva mandate to a special body which may be an existing
organization (international organization, private institution), and, especially
if there is no Protecting Power at a given time (the mandatory State ceases to
be neutral or renounces its mandate), transfer the mandate to such an
organization.
It is also conceivable that, in time of peace, all or some of the contracting
States might agree to appoint or to set up such an organization, to which the
Geneva mandate would be automatically entrusted upon the outbreak of
hostilities. Mention should perhaps be made, in this context, of the proposal
made in 1949 by the French delegation to establish an International High
Committee capable of replacing the Protecting Powers. This proposal was
not adopted in the text of the Conventions, but it is to be noted that one of the
resolutions of the Diplomatic Conference of 1949 requests that the desirabil-
ity of setting up an international body be studied. l7
However, the fact remains that on no occasion have the parties to a conflict
agreed to entrust the Geneva mandate to a special body, despite the apparent
soundness of such an approach.
A governmental organization would perhaps be subject to even greater
political handicaps than a neutral State, while it would be difficult for a
private body to command resources comparable to those of a Protecting
Power.
(ii) SUBSTITUTES FOR PROTECTING IOWERS
The entire system of the Geneva Conventions, deriving very largely from
experience during the Second World War, is founded on the idea that it is in
the interest of States engaged in a conflict to appoint mandatory Powers to
safeguard their interests with their adversaries. The mandate resulting from
the Conventions is in addition to the regular diplomatic mandate.
Experience had also shown, however, that situations may arise in which
there is no Protecting Power. Nevertheless it is necessary to find a means of
ensuring the protection of victims, and it is here that the notion of the
substitute comes into play.
We may immediately discount the case where the mandatory Power, hav-
ing ceased to exist as such for reasons specific to it, the State of origin
entrusts the defence of its interests to another neutral State. Such is the
situation which arises when the mandatory Power itself becomes a party to
the conflict, as was the case for the United States of America in December
1941. The new mandatory Power is not a substitute, its status is that of the
original Protecting Power.
Substitutes are provided for in cases where there is no Protecting Power,
either because the parties to the conflict have not appointed one or because
during the conflict events arise which put an end to the mandate. Particular
mention may be made of the annexation or occupation of the State of resi-
dence, or the disappearance of the State of origin. la
If it turns out that the persons protected by each of the Conventions do not
benefit, or cease to benefit, by the activities of a Protecting Power, it is
stipulated (article 10/10/10/11, second paragraph) that the Detaining Power
shall request a neutral State, or an organization acting in place of a Protect-
ing Power (in the sense seen above, on the assumption that there exists one)
to undertake the functions performed by the Protecting Power. It may seem
strange at first sight that responsibility for taking such a step falls to the
Detaining Power, but the fact should not be overlooked that humanitarian
considerations are of priority importance here. This being so, whatever the
reasons for the default of the Protecting Power, it is preferable for protected
persons to benefit by the activities of a neutral State, even if it is appointed
by the Detaining Power itself, rather than be deprived of all support.
With respect to this provision, it may be noted that several contracting
States have made reservations by virtue of which the request made by the
Detaining Power to a neutral State shall not be deemed valid unless the
Power, of which the protected persons are nationals, consents to it.
As this substitute system has not yet been tested there is little point in
further expounding upon it or in raising the question as to whether a distinc-
tion should have been made based on whether the Power of origin has contin-
ued to exist or has disappeared (following annexation).
Lastly, this being the final tier of the system, the Conventions also provide
for cases where protected persons do not benefit by the activities of a neutral
State (or an organization acting in its place) acting in the capacity of a Pro-
tecting Power or of a substitute. The third paragraph of article 10/10/10/11
stipulates that in such cases the Detaining Power shall request or accept the
services of a humanitarian organization, such as the ICRC, to assume the
humanitarian functions performed by Protecting Powers under the Conven-
tions. The Detaining Power is obliged to accept such an organizations offer of
services, provided that it furnishes sufficient assurances of impartiality and
efficacy.
The assumption by the ICRC or any other impartial humanitarian organi-
zation of the humanitarian functions performed by Protecting Powers in no
way restricts other general humanitarian activities which may be undertaken,
subject to the consent of the Parties concerned (article 9/9/9/10).
As the question of the ICRCs intervention is discussed below, I shall limit
myself here to two remarks. It should be noted first of all that, while the
Detaining Power is obliged to request the assistance of a humanitarian orga-
nization at this ultimate stage when no other protection is forthcoming, it is

not obliged to accept such an organizations offer of services unless two
conditions have been met: it must not have already obtained the assistance of
an institution, and the organization which proposes its services must furnish
the assurances defined in paragraph 4 of the same article.
Secondly, it will be noted that the text defines the nature of the responsibili-
ties of the humanitarian organization: it falls to it to assume the humanitarian
functions performed by Protecting Powers. While thus clearly stressing that
the humanitarian organization intervenes in a different capacity from that of
the Protecting Power or its substitute (it is not a mandatory but an auxil-
iary), this provision seems to indicate that the functions of the Protecting
Powers, in the framework of the Conventions of 1949 are not all of a humani-
tarian nature. In other words, some of them are more specifically diplomatic
or political. This is a question to which we shall return in connection with the
role of the ICRC. It may be noted here, however, that virtually all of the
functions performed by the Protecting Powers under the Geneva mandate
seem to be of a humanitarian character.
3. THE DELEGATIONS OF THE INTERNATIONAL COMMITTEE

OF THE RED CROSS
(a) The ICRC and the Geneva Conventions

It is neither necessary nor possible to describe here all the highly varied
activities of the ICRC and its specific role in the whole of the Red Cross
movement. It is sufficient to recall that, while it is closely linked to the
Geneva Conventions, the ICRC also undertakes its activities in circumstances
other than those which make the Conventions applicable.
It should be emphasized that the activities of the ICRC are not confined to
armed conflicts-either international or non-international-which define the
scope of the humanitarian Conventions. Thus, for example, they also cover
situations of internal disturbances or tensions. The best illustration of this is
that afforded by its activities on behalf of political prisoners. What character-
izes all the various types of activity carried out by the ICRC, whether or not
they are based on the Conventions, is their exclusive concern to ensure the
protection of human beings whose lives are threatened and also, from this
perspective, their constant concern for impartiality, on which their effective-
ness essentially depends. The fact remains that action on behalf of victims of
armed conflicts, which was the purpose for which the ICRC was set up,
constitutes its principal function and one which is amply enshrined in the
Geneva Conventions.
In what capacity is it required to contribute to the implementation of these
Conventions? As has been seen in connection with the Protecting Powers,
implementation of the Conventions comprises various elements. It devolves
primarily upon the parties to the conflict. It is they that must apply the
Conventions and not other States or organizations, but the latter perform a
function which can be broken down into three major types of activities:
(i) Relief activities proper, which provide victims of conflicts with mate-
rial, medical or moral assistance. These activities are not aimed at the implemen-
tation of the Conventions in the strict sense, but it seems obvious that, by
contributing to the amelioration of the condition of victims of conflicts, they
help, albeit indirectly, to ensure that the obligations laid down by the Con-
ventions are respected.
(ii) Acts and activities-generally of an administrative and technical
character-specifically entrusted by the Geneva Conventions to the Protect-
ing Power or its substitute, either because the Detaining Power is not in a
position to perform them itself, or because it is preferable that someone else
take responsibility for them. Into this category can be placed all activities
designed to help the parties to the conflict to discharge their obligations.
(iii) Supervisory activities, which may have somewhat different character-
istics according to the way in which they are conceived. If what is principally
involved is, by means of visits and checks, to call the Detaining Powers
attention to its obligations to help it to discharge them and to intercede on
behalf of protected persons, then it can be said that supervision serves an
essentially humanitarian purpose. It would be quite different if such supervi-
sion were performed with a view principally to exposing violations of law to
obloquy, distributing blame and, generally acting as a censor.
While these three types of activities are not entirely separate from each
other, it is useful to distinguish between them and to keep them in mind in
attempting to appraise the question of the ICRCs role in the application of
the Geneva Conventions. In this connection, the principal provisions consti-
tuting the legal basis for its activities should be recalled.
We have already considered the general provision of article 91919110,which
grants the ICRC the possibility, subject to the consent of the parties to the
conflict, of undertaking its humanitarian activities for the protection of those
protected by the Conventions, and for their relief. We have also seen that in
cases where no protection is afforded (there being neither a Protecting Power
nor a substitute), the Detaining Power must request or accept the offer of the
services of a humanitarian organization, such as the ICRC, to perform the
humanitarian functions performed by Protecting Powers under the Conven-
tions (article 10/10/10/11). To this should be added the important express
mention of the ICRC in common article 3. This provision concerns cases of
armed conflict not of an international character, and constitutes what has
been described as a sort of miniature Convention for this particular type of
conflict. But, more particularly, it states that an impartial humanitarian
organization, such as the International Committee of the Red Cross may
offer its services to the parties to the conflict.
Confining myself to the essential points, it seems to me that three main

remarks need to be made concerning t,hese provisions of the Conventions:
(i) The ICRC, unless another body of the same type is able to take its
place, benefits from a genuine right of intervention, but one which is limited
to certain circumstances. For this to be so there must be an armed conflict of
an international character (within the meaning of common article 2) and, in
addition, no protection must be provided for the beneficiaries of the Conven-
tions. In such a case, what is the ICRC entitled to do? In stating that it falls
to it to assume the humanitarian functions performed by the Protecting
Power under the Conventions, the text seems to indicate that certain func-
tions performed by those Powers, owing to their not having a humanitarian
character, fall outside the competence of the ICRC. However, if one dis-
counts the regular diplomatic activities of the Protecting Powers (Vienna
mandate), which fall completely outside the field of application of article
10/10/10/11, it is difficult to discover, among the activities entrusted to the
Protecting Powers by the Conventions (Geneva mandate), any which do not
have a humanitarian character or purpose. One might perhaps be tempted
thus to identify supervisory activities. However, as has been pointed out,
unless it gives rise to public protest or criticism, supervision remains essen-
tially a humanitarian activity. Moreover, the right to carry out certain acts
for the benefit of prisoners or internees, for instance, which makes it neces-
sary to enter into contact with them, would seem necessarily to involve the
right to draw the Detaining Powers attention to its obligations. It eonse-
quently seems to me that the ICRC, in this case, is to all intents and purposes
assigned all the functions performed by Protecting Powers under the Con-
ventions, for they are all of a humanitarian character, including functions
performed by way of good offices under article 11111111112,except for the fact
that the ICRC is the mandatory of none of the parties to the conflict.
(ii) It is not so much a right as a faculty, subject to the consent of the
parties to the conflict, which is granted to the ICRC in the case of interna-
tional conflict in which the system of the Protecting Power is applied. In
addition to relief activities, can it perform other functions? It is to be noted
that the tasks performed by the Protecting Power under the Conventions
may prove to be fairly onerous, especially if there are numerous prisoners of
war and civilian internees. There is consequently room for collaboration by
the Protecting Power with the ICRC, which will be able to exercise a parallel
activity, both at the administrative level and in the matter of supervision,
which is provided for by the texts themselves in certain circumstances.
(iii) The irreplaceable role of the ICRC assumes a particular dimension in
armed conflicts not of an international character, which fall outside the field
of application of the system of Protecting Powers and cause difficult problems
to arise in respect of the protection of victims. The activities which it will
endeavour to carry out, with the agreement of the parties to the conflict,
include relief activities, co-operation in the implementation of the provisions

of common article 3, starting with the calling of attention to the obligations
resulting therefrom, and measures aimed at inducing the parties to the con-
flict to bring into force all or part of the provisions of the Conventions.a3
(b) The means of action available to the International Committee of the

Red Cross
In the framework of this chapter, it is possible to make only a few brief
remarks in this connection.
One observation seems to me to deserve mention over all others. The
ICRCs essential tool, on which the implementation and effectiveness of all
its means of action depend, is its reputation for impartiality. Its moral au-
thority derives from its exclusive dedication to the cause of victims of con-
flicts, regardless of who they are. This is true both of the governing bodies of
the ICRC and its delegations.
Secondly, and particularly in regard to the implementation of the Geneva
Conventions, it is clearly the delegations that are of leading importance.24 Set
up and directed by the Geneva headquarters, they are required to play a
decisive role since it is they who, locally, keep in contact with the parties to
the conflict, intercede on behalf of protected persons, visit them, ensure that
relief is properly provided and, if need be, discharge all the functions per-
formed under the Conventions by the Protecting Powers.
In view of the necessity of impartiality and efficacy, these delegations have
to be carefully selected. It is to be noted, however, that while, by virtue of its
statutes the Committee itself is composed solely of Swiss citizens, there is no
such rule as regards the members of delegations, although, for reasons which
are easy to understand, the ICRC is obliged to be careful if it wants to guard
against any suspicion of partiality as regards those acting on its behalf.25
As for the status of the delegates, it is to be noted that article 8181819
provides that the parties to the conflict shall facilitate, to the greatest extent
possible, the task of the representatives or delegates of the Protecting Powers.
This provision holds good for the ICRC each time that it is assigned the
functions of auxiliary substitute in the sense of article 10/10/10/11, paragraph
3. It also, in my view, holds good by analogy when the ICRCs action has the
consent of the parties to the conflict, be it in the framework of article 91919110
(international armed conflicts) or of the common article 3 (armed conflicts not
of an international character). This means, on the one hand, similar immuni-
ties to those of diplomatic staff2 for their ex officio activities, and, on the
other, freedom of movement and adequate facilities for entering into contact
with protected persons.
Furthermore, and this must be the conclusion, the delegations of the ICRC
possess the outstanding characteristic of being the mandatories of the human
spirit. It is by striving scrupulously to preserve that characteristic, secure
from all prejudice or political influence, that they are in a position to play a
decisive role in the implementation of the Geneva Conventions and to be

granted the facilities required by them for that purpose.
4. RECENT DEVELOPMENTS AND APPRAISAL

It is apparent that the Geneva Conventions of 1949, in instituting the system
of Protecting Powers and in confirming the specific role of the ICRC (or any
other impartial humanitarian organization accepted by the Parties to a con-
flict), created an elaborate mechanism aimed at ensuring the correct applica-
tion of the Conventions.
It is nonetheless true that the results have been considered disappointing,
since the system of Protecting Powers has been used only occasionally and
the ICRC has been able to administer its services in only about half the
conflicts which have occurred since 1949. It is understandable then that a
greatdeal of discussion has been devoted to the problem of reinforcing the
use of humanitarian law,z7 and that the Diplomatic Conference examined this
question carefully. a8Before a brief analysis of the dispositions the Conference
adopted in this domain, two observations are called for.
First of all, the essence of the problem concerns the will of the Parties to
the conflict. If they are resolved to ignore the humanitarian rules, it is not the
mechanism of application, to which they accord little value, which will be able
to do much about it. On the other hand, if the will to respect the conventions
is present, it is important that the system of implementation should not be
burdened with defects which complicate its application.
In the second place, if one intends to ensure optimal aid to protected persons,
which is the principal goal of the scrutiny system, supervision confided to a
third party must clearly aim to incite the Parties to the conflict to assume their
obligations. Indeed it must help them to do so. Inquiries on violations, public
criticism, and condemnations of all kinds belong to another outlook, which is
beyond the scope of this discussion. It is submitted that during hostilities, this
type of control frequently risks being more prejudicial than useful in the appli-
cation of humanitarian law. That is why, concerning the reinforcement of this
application, we leave aside propositions dealing with the creation of bodies with
the essential vocation of establishing the facts about and condemning infrac-
tions, whatever their merits may be from an overall point of view?
The preparatory work and debates of the Conference clearly demonstrate
that the principle of the system of Protecting Powers is not contested.
While pointing out difficulties which have arisen, the majority of commenta-
tors have recognized its merits and asserted that it was necessary to improve
the system, not to abolish it.
In adopting article 5 of Protocol I additional to the Geneva Conventions,
the Diplomatic Conference clearly declared itself in favor of reinforcing the
Protecting Powers system, with the goal of applying the Conventions of
1949. The first two paragraphs of this document state:
1. It is the duty of the Parties to a conflict from the beginning of that conflict to secure the
supervision and implementation of the Conventions and of this Protocol by the applica-
tion of the system of Protecting Powers, including inter alia the designation and accep-
tance of those Powers, in accordance with the following paragraphs. Protecting Powers
shall have the duty of safeguarding the interests of the Parties to the conflict.
2. From the beginning of a situation referred to in Article 1, each Party to the conflict shall
without delay designate a Protecting Power for the purpose of applying the Convention
and this Protocol and shall, likewise without delay and for the same purpose, permit the
activities of a Protecting Power which has been accepted by it as such after designation
by the adverse Party.
Difficulties arose from the fact that by virtue of the Conventions of 1949
the mandate of Protecting Power is added to the ordinary diplomatic man-
date. It can be noted that Protocol I, without expressing an opinion on
whether the Vienna Mandate entails ipso jure the Geneva Mandate, in
any case imposes on the Parties to the conflict the duty to act so that the
system of Protecting Powers is set up for the purpose of applying the Con-
ventions and the Protocol. It is true that this system continues to be based on
a three-sided agreement. However, in making the attribution of the Geneva
Mandate an autonomous obligation, article 5 represents an advance capable
of offering a solution in situations where the designation of a Mandatory
Power in the sense of the Vienna Convention must not be counted on (see
Protocol I, art. 5, paras. 5 and 6). To this obligation to designate and accept a
Protecting Power, article 5 adds a mechanism designed to facilitate attribu-
tion of this mandate in case the Parties to the conflict should delay doing so.
It also reserves in this respect a special role to the ICRC (see Protocol I, art.
5, para. 3).
Parallel to the improvement and reinforcing of the Protecting Powers sys-
tem, the position of the ICRC as substitute is strengthened. Without causing
damage to its own particular tasks (especially relief activities), it can offer to
act as substitute, and this offer must be accepted. The same provision is
equally valid for any other impartial body (see Protocol I, art. 5, para. 4).
There remains the serious problem of the application of humanitarian law
in armed conflicts not presenting an international character. It could be
wished that Parties to conflicts were obliged to resort to the services of the
ICRC. Taking into account the opinion of the majority of experts that it had
consulted, the ICRC did not go so far in the draft of Protocol II that it
submitted to the Diplomatic Conference. It suggested a provision which,
under the title, Aid to Observation of the Present Protocol, limited itself to
instituting the option for the Parties to the conflict to resort to the services of
the ICRC or any other impartial body. This proposition thus went hardly
further than the common article 3 of the Conventions. Even in this scarcely
restrictive form, it did not find favour in the eyes of the Diplomatic Confer-
ence, with the result that there is no provision in Protocol II which adds to
what already exists concerning our subject.
Finally, then, it can be said, concerning armed conflicts of an international
~~-,- .-.-- ..^ . _--- .._-_ --. .-. . .I_ .-__

character, that the system designed to deal with them, while not perfect, is of
a sort to favor correct application of humanitarian law in all cases where the
Parties to conflict intend to fulfil1 their obligations in good faith. The assis-
tance of a Protecting Power ought to be assured, even if conditions are such
that no State has been invested with an ordinary diplomatic mandate.
Protocol I undoubtedly created a new difficulty, because it considers situa-
tions, such as wars of liberation against Colonial Powers or insurrections
against racist regimes, as international armed conflict (see Protocol I, art. 1,
paras. 3 and 4).
In situations of this kind, attribution of the Geneva Mandate to a Protect-
ing Power frequently runs up against considerable political difficulties. Neverthe-
less, the obligation remains to accept the ICRC as a substitute.
Concerning armed conflicts of a non-international character, the situation
remains uncertain. It has proved to be impossible to develop or strengthen
the system of assistance and control beyond the terms of the common article
3. To tell the truth, the problem in question is one that would be suitable to
examine in the general context of international humanitarian law. For the
moment, this is a law between States. The Conventions and Protocols are
open only to States. Reflection ought to be given to the manner in which it
could prove desirable and possible to broaden this structure, which would
perhaps permit improvement in its implementation.
NOTES
1. The rules of the law of armed conflicts and the links which exist between those rules
and international norms for the protection of human rights are examined aupru, in Chapters
3 and 8.
2. See G. Schwarzenberger, The Law of Armed Conflicts, London, Stevens, 1968, Vol.
2, p. 9.
3. See the Diplomatic Conference on the Reqffirmatio?l and Development of I&emu-
tional Hum,anitarian Law Applicable in Armed Conflicts, Final Act, Geneva, 1977.
4. These, it may be recalled, are Convention I for the amelioration of the condition of the
wounded and sick in armed forces in the field, Convention II for the amelioration of the
condition of wounded, sick and shipwrecked members of armed forces at sea, Convention
III relative to the treatment of prisoners of war and Convention IV relative to the protec-
tion of civilian persons in time of war. When mention is made of the same article in the four
Conventions, the following system is employed: 818819.
5. In this regard the Conventions provide for an inquiry procedure. See art. 52/53/132/149.
6. Referred to hereinafter as the ICRC.
7. Concerning the system of application of the Geneva Conventions, see in particular the
Commentary of the 1949 Conventions, published under the general editorship of J. Pictet, 4
Vols., Geneva, ICRC, 1952-1966;F. Siordet, The Geneva Conventions qf 19/g: The Ques-
tion of Scrutiny, Geneva, 1953; P. de La Pradelle, Le controle de lapplication des conven-
tions humanitaires en cas de conflit army, Annunirefra?lCais de droit international, 1956,
p. 343 et seq.
8. Concerning the Protecting Power within the meaning of general international law,
see e.g. K. Doehring, Schutzmacht, in Strupp-Schlochauer, W6rterbuch des Vtilkerrechts,
Band III, Berlin, 1962, pp. 218-222; P. Guggenheim, Trait6 de droif intemafional public,
446 Christian Dominici!
Vol. II, Geneva, 1954, p. 332 et seq.; M. Whiteman, Digest of International Law, Vol. 7,
Washington, 1970, pp. 448-464. See also R. Bertschy, Die Schutxmacht im Mlkemecht,
Fribourg thesis, 1952and A. Janner, La Puissance protectrice en droit international dapres
les experiences faites par la Suisse pendant la seconde guerre mondiale, trad. Monney, 2nd
ed., Basel, 1972.
9. Cf. F. Siordet, op. cit., pp. 36-37.
10. A complete table of all the references to the Protecting Powers in the four Conven-
tions is given in F. Siordet, op. cit., pp. 73-78.
11. Cf. Commentary, op. cit., Conv. I, p. 106.
12. Numerous activities provided for by Conventions III and IV which are of an adminis-
trative character, in the broad sense, or of a medical character, come under the heading of
such co-operation. See the list given of them in the table mentioned supra, note 10.
13. The most typical examples are visits to prisoners camps and places of internment,
Convention III, art. 126, and Convention IV, art. 143.
14. Cf. documents submitted by the ICRC to the Conference of Government Experts of
1971, Vol. II, Geneva, January 1971; and UN Dots. A/7720 (1969) and A/8052 (1970).
15. See Rousseau, Chronique des faits internationaux, Revue g&n&ale de droit inter-
national public, 1972, p. 538, and 1973, p. 857.
16. It is important to point out that the ICRC, for its part, was able to perform its
traditional humanitarian role in regard to all prisoners.
17. See Commentary, op. cit., Conv. I, p. 127, and P. de La Pradelle, lot. cit., p. 344.
The resolution of the Conference of 1949 is reproduced in the International Red Cross
Handbook, 11th ed., Geneva, 1971, p. 225.
18. For an analysis of the various cases where there is no Protecting Power revealed by
the Second World War, cf. F. Siordet, op. cit., p. 50.
19. Cf. Commentary, op. cit., Conv. I, p. 128.
20. Art. 10/10/10/11,para. 4.
21. The parties to the conflict do however assume some obligations in respect of relief
activities, cf. in particular Conv. IV, art. 23.
22. Convention III, art. 126, and Convention IV, art. 143.
23. Art. 3, para. 3.
24. See H.G. Knitel, Les delegations du Comite irzternational de la Croix-Rouge, Ge-
neva, 1967 (Etudes et travaux de lInstitut universitaire de Hautes Etudes internationales,
No. 5).
25. Note that, in regard to the performance of certain specific functions, the appointment
of delegates is submitted to the approval of the Detaining Power. Cf. art. 126 of Convention
III, art. 143 of Convention IV.
26. See H.G. Knitel, op. cit., p. 107.
27. See references cited in note 14, supra and Council of Europe Consultative Assembly
dot. 3336 (1973).
28. This Section was written after the conclusion of the Diplomatic Conference, with the
collaboration of Mr. Antoine Martin, former deputy head of the Legal Division of the ICRC,
whom the author would like to thank.
29. In the Geneva Conventions, inquiries on violations are referred to in a separate
article (art. 52153113211491, which shows clearly that they fall under a different heading than
supervision of the Conventions application. Also see art. 90 of Protocol I (International
Fact-finding Commission).
30. See Questionnaire concerning measures intended to reinforce the implementation of
the Geneva Conventions of August 12, 1949: replies sent by Governments, ICRC, Geneva,
1973;J. Patrnogic, Controle de lapplication des conventions humanitaires et probleme des
sanctions, Annales de droit international medical, No. 24, September 1973, p. 75; Diplo-
matic Conference, Report of Commission I.
31. Protocol I gives the following definition of Protecting Power in its article 2, para-
graph c: Protective Power means aneutral or other State not a Party to the conflict which
has been designated by a Party to the conflict and accepted by the adverse Party and has
agreed to carry out the functions assigned to a Protecting Power under the Conventions and
this Protocol.
Sub-Part II
Regional Institutions
for the Promotion
and Protection of
Human Rights
15 Introduction
Karel Vasak
1. THE UNITED NATIONS AND REGIONAL HUMAN RIGHTS

INSTITUTIONS
The Charter of the United Nations, Chapter VII of which is devoted to
Regional Arrangements, contains nothing which precludes the existence of
such arrangements and indeed provides encouragement for them, especially
insofar as they are likely to contribute to the pacific settlement of local
disputes. What is revealed here once again is a negative rather than a posi-
tive conception of peace, which is that of the authors of the San Francisco
Charter: peace understood as a period without conflicts and, in particular,
without violent conflicts. Moreover, the Charter specifically assigns only one
obligation to regional agencies: to contribute to the settlement of local disputes.
Despite the emphasis laid on the settlement of conflicts, the Charter does
not preclude action by regional agencies in other fields: paragraph 1 of article
52 of the Charter, in referring to the purposes and principles of the United
Nations (article 11, which include the promotion of respect for human rights,
opens the way for regional action in the field of human rights, without how-
ever making it obligatory.
For a long time, regionalism in the matter of human rights was not popular
at the United Nations: there was often a tendency to regard it as the expres-
sion of a breakaway movement, calling the universality of human rights into
question. However, the continual postponements of work on the Interna-
tional Human Rights Covenants led the UN to rehabilitate, and to be less
suspicious (less jealous, some would say) towards, regionalism in human
rights, especially after the adoption of the Covenants in 1966.
By Resolution 2200 C (XXI) of 19 December 1966, the General Assembly
requested the United Nations Commission on Human Rights to study, inter
alia, the question of the setting up of appropriate regional institutions for the
purpose of discharging certain functions relating to observance of the Cove-
nants. Consequently, the Commission on Human Rights (resolution 6 (XXIII)
of 1967) set up an ad hoc group to study the possibility of establishing re-
452 Karel Vasak
gional human rights commissions within the framework of the United Na-
tions. The 1968 report of the Group, which contained neither conclusions nor
recommendations, simply stressed that the initiative in this matter must
emanate from the States of the region concerned. Nevertheless, the United
Nations has subsequently organized three regional seminars in Africa which
have dealt with the subject of regional commissions.
The first of these was organized in Cairo in September 196g2. On the basis
of the report of that seminar and of the report of the ad hoc study group the
Commission adopted another inconclusive resolution in which it requested
the Secretary-General to arrange for appropriate consultation and exchange
of information between the Commission and the Organization of African Unity
as regards the possible establishment of the suggested regional commission
(resolution 6 (XXVI) of 1970). In 1973 a seminar held in Dar-es-Salaam on
new ways and means for promoting human rights with special attention to
the problems and needs of Africa concluded that an African Convention on
human rights should be prepared under OAU auspices and accepted in prin-
ciple the need for an African Commission.
In a series of resolutions between 1977 and 1979 the General Assembly
appealed to States in areas where regional arrangements in the field of
human rights do not yet exist, to consider agreements with a view to the
establishment within their respective regions of suitable regional machinery
for the promotion and protection of human rights4. In July 1979 the 16th
ordinary session of the OAU Assembly of Heads of State and Government
called on the OAU Secretary-General to organize a meeting of highly quali-
fied experts to prepare a preliminary draft of an African Charter on Human
and Peoples Rights providing inter alia for the establishment of bodies to
promote and protect human and peoples rights.
A subsequent United Nations regional seminar on the establishment of
regional commissions on human rights with special reference to Africa was
held in Monrovia in September 1979. It adopted the Monrovia Proposal for
the Setting Up of an African Commission on Human Rights which contains a
possible model for such a commission j. Finally, the African Charter of Human
and Peoples Rights was adopted in Nairobi in June 1981.
In relation to other regions, it may be noted that the August 1979 Confer-
ence of the Law Association of Asia and the Western Pacific (LAWASIA)
recommended that the Council of Lawasia establish a Permanent Standing
Committee on Human Rights with a view to establishing a Centre or Centres
for Human Rights in the region and the working towards the creation of an
Asian Commission and/or Court of Human Rights.
Finally although not strictly a regional initiative, mention may be made of
the fact that in 1979 the Heads of Government of Commonwealth nations
invited the Commonwealth Secretary-General to appoint a Working Group to
examine a proposal, put forward by The Gambia, to establish a Common-
wealth Human Rights Commission. In October 1981, the Commonwealth
.-.^.._-.._ _,....
-_-_,.-_-_.
Introduction 453
Heads of Government agreed in principle to establish a special unit within the

Commonwealth Secretariat for the promotion of human rights.
2. REGIONAL HUMAN RIGHTS INSTITUTIONS-THE PRESENT

POSITION
Signs of the regionalization of human rights are now to be seen in every
continent, although only in a very embryonic form in Asia.
This movement was first launched, chronologically, on the European con-
tinent. Today the international promotion and protection of human rights has
acquired three institutional dimensions in Europe, but there are great dispari-
ties, both in the extent to which this particular branch of European law has
been developed, and in the machinery established for its implementation.
These three dimensions are as follows:
(i) The Community dimension. Within the European Communities, re-
spect for basic rights forms an integral part of the general principles of law
whose observation is ensured by the Court of Justice and the protection of
these rights, consonant with the constitutional traditions common to Member
States, must be assured within the context and aims of the Community
(Case 11-70, Internationale Handelsgesellschaft, Collected Texts XVI, p.
1135). Thus, community law in respect of human rights, which is still in
embryonic form, is essentially jurisprudential in nature except when it is
based upon an express provision of constitutional treaties as is, for instance,
article 7 of the EEC Treaty, affirming the principle of non-discrimination. It
is also to be noted that, during 1979-1980, a number of steps have been taken
in the direction of securing formal adherence by the European Communities
to the European Convention.7
(ii) The pan-European, or greater European dimension found institutional
expression in the Conference on Security and Co-operation in Europe (CSCE)
and its follow-up activities and review conferences in Belgrade in 1978 and in
Madrid in 1980-1982. Apart from the fact that, in the Final Act, human rights
are considered to be one of the principles governing the mutual relations of
the participating States, specific aims are set forth in the field of human
rights -a field, moreover, described preferably as the humanitarian field
in that document-and, more particularly, in respect of freedom of move-
ment of men, ideas and information.
(iii) The Roman dimension, the most developed of all, whose institu-
tional framework is the Council of Europe and whose legal basis is the Rome
Convention for the Protection of Human Rights and Fundamental.Freedoms
and the Turin European Social Charter is of particular interest in the context
of this treatise.
Outside Europe, the regional protection of human rights is not marked by
the same degree of development nor by the same level of institutionalization.
On the American continent, the problem has been theoretically received
454 Karel Vasak
along the same lines as in Europe since the Organization of American States,
after setting up in 1959 an Inter-American Commission on Human Rights,
succeeded in providing it with a supporting framework in the form of the
American Convention on Human Rights adopted in 1969, and which entered
into force on July 18, 1978.
On the African continent, after proclaiming their adherence to the Univer-
sal Declaration of Human Rights, the authors of the Charter of Addis Ababa
creating the Organization of African Unity did not reserve a leading place for
human rights since no African organ with special responsibility for human
rights has so far been created. However, we have noted above the recent
initiatives which have been taken within Africa with a view to the establish-
ment of a regional commission.
In the Arab world, the League of Arab States did, it is true, set up in 1968
a permanent Arab Commission on Human Rights, but this body is insuffi-
ciently well-known, even in the Arab countries, and so far its activities have
passed unnoticed, with the exception of its work to draw up a Declaration of
the Rights of Arab Citizens. One cannot fail to note the links being forged
between the African world and the Arab world: the Arab-African dialogue
has already given rise to close co-operation in the economic and social fields;
it is to be hoped that the field of human rights will soon follow.
3. HUMAN RIGHTS AND REGIONAL INTEGRATION

Intended to pave the way towards a united Europe of which it would consti-
tute the axis, the European Convention on Human Rights-which is mani-
festly the most developed system for the regional protection of human rights-
both sustains and is sustained by a policy of European integration. It is a fact
that the supra-national elements which it contains (right of individual petition
before a court, powers of decision of the Court, in particular) would not resist
for long in a purely intergovernmental organic body or in one not of a nature
to transcend itself through a process of legal and even constitutional integra-
tion. Expressed in terms of the geopolitical character of existing European
organizations, what this means is that in order to continue to exist and to
develop, the Rome Convention requires not only the institutional support of
the Council of Europe, but also the political implications of the European
Communities, just as the Council of Europe and the European Communities
would not be able without peril to remain cut off from the Convention. Logi-
cally, it was seen that the outcome of the Greek case-that is to say, of the
applications brought by several European governments against the Greek
government of the Colonels before the European Commission of Human
Rights-affected both the frontiers of the Council of Europe-Greece with-
drew from the Organization-and those of the European Communities, since
the operation of the Agreement setting up an Association between the EEC
and Greece had to be suspended.
Introduction 455
The experience of the European Convention of Human Rights thus tends

to show that the regional protection of human rights can achieve full success
only if it constitutes an element in a policy of integration on the part of the
States of a given region. Only at this price is it possible to permit the blow
struck by regionalism in the matter of human rights against that necessary
universalism which springs from the intrinsically identical nature of all human
beings. The recent entry into force of the United Nations Covenants on Civil
and Political Rights and on Economic, Social and Cultural Rights, which
should be preserved as a legal expression of the universal character of the
human being, should even lead us to be more exacting in the future in respect
of regionalism than we were in the past when no universal system for the
effective protection of human rights seemed feasible. In the last analysis,
regional protection must come within the framework of regional organization
in accordance with the Charter of the United Nations and become one aspect
of the policy of integration. If, however, regional protection were but a form
of intergovernmental co-operation, the parochial and perhaps even selfish
attitudes of which it would also be the expression, would by no means justify
the danger of such a serious blow to universalism.
NOTES
1. Dot. EICN.41966 and Add. 1.
2. See the basic document for this seminar by K. Vasak, published in MBlanges Cassin,
Pedone, Paris, 1968. Vol. 1, p. 467, under the title Vers la creation de commissions
regionales des droits de Ihomme. The report of the Cairo seminar was published in dot.
STITAOIHRI38.
3. UN dot. STITAOIHRI48, paras. 127-28.
4. See General Assembly resolutions 321127(19771,331167(1978) and 341171(1979).
5. AHG/Dec. 115 (XVI) reproduced in United Nations document A/34/552 (1979) Annex
II. A draft of the Charter is reprinted in the Bulletin of Peace Proposals, Oslo, Vol. II, No.
4, 1980.
6. United Nations document STIHRISER.AI4, para. 83 and Annex 1.
7. See EEC dot. COM (79) 210 final, 2 May 1979; H.G. Schermers, The Communities
under the European Convention on Human Rights, Legal Issues of European Integration,
197811,p. 1; and the articles in Vol. 5, No. 4, 1972 of RDHIHRJ.
8. This is Principle VII entitled Respect for human rights and fundamental freedoms,
including the freedom of thought, conscience, religion or belief.
9. A similar idea is to be found in the General Agreement on Tariffs and Trade: it is
permissible to limit the application of the most-favoured-nation clause to certain countries
only if the goal pursued is the establishment of a free-trade area or a customs union.
16 The Council
Europe
of
Kare1 Vasak
According to article 1, paragraph (a), of the Statute of 5 May 1949, the aim
of the Council of Europe is to achieve a greater unity between its members,
of which there are now twenty one (Austria, Belgium, Cyprus, Denmark,
Federal Republic of Germany, France, Greece, Iceland, Ireland, Italy,
Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain,
Sweden, Switzerland, United Kingdom and Turkey). It should in fact be
possible, in realizing this aim, to attain two objectives: To safeguard and
promote the ideals and principles which are the common heritage of its Mem-
ber States; and to facilitate their economic and social progress. According to
the Statute, this common heritage which is to be safeguarded and promoted
includes the spiritual and moral values which are. the true source of indi-
vidual freedom, political liberty and the rule of law, principles which form the
basis of all genuine democracy.
The desire to defend and promote freedom-and consequently democracy-
therefore permeates the entire Statute of the Council of Europe: It is re-
flected in particular in articles 3, 4, 5 and 8 which govern the various aspects
of the membership of the Council. Only democratic States can become mem-
bers of the Council of Europe which, as a result, constitutes no less than a
club of European democracies, the rules of admission to which seem partic-
ularly strict. Some authors go so far in this view as to contend that the
European Convention on Human Rights has, for the Council of Europe, a
constitutional value in the sense that all Member States should ratify it and
that a. State applying for admission must undertake to do so. This view,
however, is contradicted by the provisions of article 65, paragraph 1, of the
Convention which authorize a Contracting State to denounce the Convention
while remaining a member of the Council of Europe.
It nevertheless remains true that this thesis has a political value in that it
reflects the pre-eminence of human rights among the concerns of the Council
of Europe. Today, the organization is increasingly identified with human
rights, striving to become the home of freedom, the haven of democracy, the
ultimate recourse of the persecuted. This being so, it is easy to understand
458 Karel Vasak
the spirited reactions within the Council of Europe to the coup dktat of the
Greek colonels in 1967, followed two years later by the withdrawal of Greece
from the Council.
It is easy to understand why the European Convention on Human Rights
was the first multilateral treaty concluded in the framework of the Council of
Europe, of which it provides an extension of the statutory basis, and why the
Strasbourg organization sought to complement this first treaty on human
rights by a second agreement for the protection of the economic and social
rights of man: this was to be the role of the European Social Charter.
1. THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The Convention for the Protection of Human Rights and Fundamental Free-
doms was signed in Rome on 4 November 1950 and entered into force on 3
September 1953 after the tenth instrument of ratification had been depos-
ited. The Convention is supplemented by five additional Protocols which fall
into two different categories:
The (first) additional Protocol, signed in Paris on 20 March 1953 and which
came into force on 19 May 1954, and Protocol No. 4, signed in Strasbourg on
16 September 1963 and which came into force on 2 May 1968, recognize
certain rights and freedoms other than those already included in the Conven-
tion; the provisions concerning them are considered to be additional articles
to the Convention which consequently applies to them.
Protocols Nos. 2,3 and 5 concern the operation of the two principal organs
of the Convention, the European Commission and Court of Human Rights.
Protocol No. 2, signed at Strasbourg on 6 May 1963, confers upon the Court
competence to give advisory opinions. Protocol No. 3, also signed at Stras-
bourg on 6 May 1963, amends articles 29, 30 and 34 of the Convention con-
cerning the procedure of the Commission. These came into force on 21 September
1970. Protocol No. 5, signed at Strasbourg on 20 January 1966, entered into
force on 20 December 1971. It amends articles 22 and 40 of the Convention
governing the election of members of the Commission and of the Court; it
was ratified by nineteen Member States of the Council of Europe. Mention
should also be made here of the European Agreement Relating to Persons
Participating in Proceedings of the European Commission and Court of Human
Rights, which was signed in London on 6 May 1969. The purpose of this
Agreement is to grant certain strictly enumerated immunities and facilities
to persons who, as applicants, witnesses or in other capacities, take part in
the proceedings of the Commission and Court. The Agreement came into
force on 17 April 1971.
As of January 1982, the Convention was binding upon twenty members of
the Council of Europe, namely: Austria, Belgium, Cyprus, Denmark, Fed-
eral Republic of Germany, France, Greece, Iceland, Ireland, Italy, Luxem-
bourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland,
The Council of Europe 459
United Kingdom and Turkey. The First Additional Protocol has been ratified
by the same States, with the exception of Switzerland. Protocol No. 4 has
been ratified by the following States: Austria, Belgium, Denmark, Federal
Republic of Germany, France, Iceland, Ireland, Luxembourg, Norway, Por-
tugal and Sweden.
The human rights (civil and political) protected by the Convention are
enumerated in it and in Protocols Nos. 1 and 4. These human rights cover
protection of physical well-being (right to life, prohibition of torture, inhu-
man or degrading treatment or punishment, prohibition of slavery, servi-
tude, forced or compulsory labour); protection of freedom (freedom of movement,
right to freedom and security); protection of the right to justice (right to be
granted effective remedy, right to a fair hearing, rights of the accused);
protection of privacy (right to marry, right to respect for private and family
life, right to respect for ones home and correspondence); protection of intellec-
tual activity (freedom of thought, conscience and religion, freedom of expres-
sion, right to education and right of parents over the education and teaching
of their children); protection of political activity (freedom of assembly and
association, free elections); protection of economic activity (right to enjoy
ones possessions). At the same time, discrimination, on whatever grounds,
in the exercise of the rights protected is prohibited.
But the originality of the Convention does not lie in the list of rights which
it protects. It indisputably lies in the institutional part of the Convention, and
more precisely in the machinery for the international supervision of the ob-
servance of its provisions. The authors of the Convention devised a lasting
institutional framework, and one which is relatively complex and unwieldy,
comprising an organ of inquiry and conciliation, the European Commission of
Human Rights, a political decision-making organ, the Committee of Minis-
ters of the Council of Europe, a judicial decision-making organ, the European
Court of Human Rights, and an auxiliary organ of the Convention, the Secretary-
General of the Council of Europe.
(a). An organ of inquiry and conciliation: the European Commission of

Human Rights
Under article 19 of the Convention, the European Commission of Human

Rights is one of the two organs whose purpose is to ensure the observance of
the engagements undertaken by the High Contracting Parties. While the
constitution of the European Court of Human Rights, the other organ insti-
tuted by the Convention, presupposed prior acceptance of its compulsory
jurisdiction by eight States, the Commission could come into being once the
Convention came into force on 3 September 1953. The first election of the
members of the Commission took place on 18 May 1954.
The general rules concerning the organization, operation, competence and
procedure of the Commission are contained in Section III of the Convention.
- _-. . _----
460 Karel Vasak
They are more clearly defined in the Rules of Procedure established by the
Commission in pursuance of article 36 of the Convention, the revised version
of which came into force on 15 May 1980.
As a compromise solution between the conflicting requirements of the
individual to whom the promoters of the Convention wished to open the doors
of the international court, and those of the State, which had to be protected
against improper individual appeals, the creation of the Commission no doubt
expresses in succinct form the originality of the Convention. Serving as a
substitute for the Court for the individual and yet as a tribute to the sover-
eignty of States, the Commission has many and varied functions. The sole
link between these tasks is often merely the identity of the parties in the case
laid before it. Like certain characters in Greek mythology, it changes face
when it changes function. A Chamber of Petitions at the beginning, when it
decides whether an application is admissible, it goes down a notch in the
judicial hierarchy to become a mere examining magistrate when it estab-
lishes the facts of the case. As a conciliating magistrate when it seeks a
friendly settlement, it must also possess the qualities of a diplomat since the
interests of a State are at stake. Then, required to give its opinion as to
whether there has been a breach of the Convention, the Commission becomes
an auxiliary of justice in the guise of the professional expert on human rights.
Finally, in order to perform the entire spectrum of judiciary functions, the
role of an attorney-general falls to the Commission before the Court.
Only the affirmation of its jurisdictional character could enable the Com-
mission to carry out these functions without too many clashes. Originally
envisaged as a simple administrative organ entrusted with conciliation and
with the sorting out of applications, the Commission found in fact that these
tasks were too numerous for a body that did not sit in a permanent capacity.
To circumvent this it organized and imposed itself on States and individual
applicants as an international judicial organ. The rules governing both its
organization and operation as well as its practice-which has become a genu-
ine case-law-provide a striking confirmation of this unanimous desire on the
part of its members.
(i). ORGANISATION AND OPERATION
Membership
The Commission consists of a number of members equal to that of the High
Contracting Parties. No two members may be nationals of the same State
(Conv., art. 20). The Commission consequently consists at the present time
of twenty members. The members of the Commission are elected by the
Committee of Ministers of the Council of Europe by an absolute majority of
votes, from a list of names drawn up by the Bureau of the Consultative
Assembly of the Council of Europe. Each group of the Representatives of the
High Contracting Parties in the Consultative Assembly puts forward three
candidates, of whom at least two are its nationals (Conv., art. 21).
The Convention does not lay down the qualifications required to be a

candidate. However, the national groups in the Assembly have always taken
care to put forward candidates possessing high qualities and in fact comply-
ing with the conditions laid down by article 39, paragraph 3, of the Conven-
tion, for candidates for membership of the European Court of Human Rights,
namely: to be of high moral character and either possess the qualifications
required for appointment to high judicial office or be jurisconsults of recog-
nized competence.
The members of the Commission, except for those elected at the time of
the first election which was held on 18 May 1954, are elected for a period of
six years, half of whom are replaced every three years. However, once new
members had to be elected because of new ratifications of the Convention,
the purpose of article 22 of the Convention could not be achieved since their
six-year period of office began at a date often very different from that of the
other members of the Commission. Consequently, Protocol No. 5 of the
Convention, of 20 January 1966, provides that, in order to ensure that as far
as possible one half of the membership of the Commission shall be renewed
every three years, the Committee of Ministers may decide, before proceed-
ing to any subsequent election, that the term or terms of office of one or more
members to be elected shall be for a period other than six years but not more
than nine and not less than three years.
The members of the Commission may be re-elected. Resignation of a mem-
ber constitutes vacation of office. A member of the Commission elected to
replace a member whose term of office has not expired holds office for the
remainder of his predecessors term. However, the members of the Commis-
sion hold office until replaced. After having been replaced, they continue to
deal with such cases as they already have under consideration (Conv., art.
22).
The Convention passes over in silence the question whether the holding of
the office of member of the Commission is incompatible with certain profes-
sions or functions. It would have been difficult for it to have been otherwise
owing to the fact that the members of the Commission are not required to sit
in a permanent capacity within an organ which is, however, a permanent one.
It is self-evident, however, that it is not possible to be simultaneously a
member of the Commission and a member of the Court. The Rules of Proce-
dure merely provide that a member of the Commission may not take part in
the consideration of any case in which he has a personal interest, or has had
to be apprised of the facts of the case as the advisor of one of the parties or as
a member of a tribunal or commission of inquiry, or in any other capacity (art.
21, para. 1). Moreover, the Rules of Procedure reserve each member of the
Commission the right to withdraw from consideration of a particular case for
some special reason (art. 22). Likewise, if a member or the President of the
Commission considers that one of the members should not take part in the
consideration of a particular case, because a circumstance is involved which
Karel Vasak
may affect the impartiality of that member, the question is submitted to the
Commission for decision (art. 21, para. 2).
The Commission elects its President and its first and second Vice-Presidents
for a period of three years (or, more exactly, for the period separating two
partial renewals of members of the Commission, that period being, in pursu-
ance of Protocol No. 5, inferior or superior to three years). The President
directs the work and presides at the meetings of the Commission. The first
Vice-President replaces the President if the latter is unable to carry out his
duties or if the office of the President is vacant (Rules of Procedure 6 and 7);
the second Vice-President replaces the first under the same conditions. If the
President is a national of, or was put forward as a candidate by, a High
Contracting Party which is party to a case brought before the Commission,
he must relinquish the office of President in respect of that case (Rule 9).
No provision of the Convention deals with the question of the remunera-
tion of the members of the Commission. This silence is accounted for by the
fact that when the Convention was being drafted, it was not known what
would be the volume of work of the Commission and whether the continual
presence of its members would be necessary. It was thus not possible to
decide whether a fixed remuneration should be opted for or compensation for
each day of duty. At the present time, the members of the Commission
receive a compensation, the sum of which is determined by the Committee of
Ministers of the Council of Europe.
Place, sessions and organization of work

The seat of the Commission is the seat of the Council of Europe in Stras-
bourg. The Commission may decide at any stage during the consideration of
an application that it is necessary for itself or one or more of its members to
carry out an enquiry or perform any other of its functions elsewhere. Thus,
increasingly frequently, local enquiries or visits to the scene of the alleged
violation by several delegates of the Commission have been organized.
A quorum of the Commission is ten members out of the twenty who cur-
rently constitute the Commission. However, seven members may constitute
a quorum, in particular in the case of an individual application not communi-
cated to the State against which it is brought (Rule 16, para. 2).
The sessions of the Commission and its organs are held in camera (Conv.,
art. 33, Rules of Procedure, 17). It follows that, in the course of proceedings,
the parties involved are not authorized to give information concerning the
procedure. The Commission alone may publish a press release from time to
time.
This rule which often creates difficulties has been much criticized particu-
larly in cases with political implications in which it is important, if not essen-
tial, for the hearing to be made public. A priori, it ill befits the nature of the
role assigned by the Convention to the Commission: to be the custodian of
human rights. As the Committee of Ministers also meets in camera, a case
which has not been brought before the Court-whose hearings are in princi-
ple public- will have been examined from the time that it was introduced
right up to the final decision in the course of sessions held in camera. In fact,
the in camera rule is justified, or at least accounted for, in the case of the
Commission, by the conciliation mission which the Convention entrusts to it
at a particular stage of the procedure. In addition, it is motivated by the
desire of the authors of the Convention to provide States with further protec-
tion against ill-willed or ill-intentioned applications.
The rules concerning administration proper reveal that close links exist
between the Commission and the Council of Europe. Thus, the Secretariat of
the Commission is provided by the Secretary-General of the Council of Eu-
rope, who also appoints the Secretary of the Commission (Conv. art. 37,
Rules of Procedure, 11 to 13). The Secretary of the Commission performs
functions similar to those of the registrar of an international court (cf. Rules
of Procedure, 12 and 13).
(ii) COMPETENCEOFTHECOMMISSION
Ratione loci
The Commission is competent, ratione loci, to take cognizance of facts
which occur on territories where the Convention is being applied. These are,
first of all, the national territories of the contracting States. It is to be noted
that the Federal Republic of Germany has made a declaration to the effect
that the territory to which the Convention applies also includes the Land of
Berlin.
In order for the Convention to apply to the non-metropolitan territories for
whose international relations the contracting States are responsible, an ex-
press notification of extension is necessary (art. 63). Three States have had
recourse to this faculty: Denmark with respect to Greenland (the notification
has become inapplicable since Greenland has become an integral part of the
national territory); the Netherlands with respect to Surinam which has since
become independent and the Dutch West Indies; the United Kingdom with
respect to forty-two territories: most of these territories have also become
independent (in which case the Convention ceases to apply to them since,
according to article 66, it is open for signature solely by Members of the
Council of Europe).
The competence ratione loci of the Commission is not limited, however,
solely to the national territory or to the non-metropolitan territories to which
the Convention has been extended pursuant to article 63. For it emerges
from article 1 of the Convention that the contracting States are obliged to
secure the rights and freedoms defined in the Convention to everyone within
their jurisdiction. That is to say, according to the interpretation given by
the Commission, in particular in its decision concerning the admissibility of
464 Karel Vasak
the application Cyprus u. Turkey, to everyone effectively under their author-

ity or responsibility, whether such authority is exercised in their territory or
abroad.
It is to be noted that the Committee of Ministers has decided to preserve
the Conventions character as a closed treaty. In February 1963, it agreed
not to take action upon a recommendation of the Assembly requesting that
States which are not members of the Council of Europe and which possess
the required qualifications be granted the opportunity to accede to the
Convention.
Ratione personae
The Commission may receive petitions from:
-any High Contracting Party (Conv., art. 24);
-any person, non-governmental organization or group of individuals pro-
vided that the High Contracting Party against which the complaint has
been lodged has declared that it recognizes the competence of the Com-
mission to receive such petitions (Conv., art. 25).
At first sight, the right of a Contracting Party to address a petition to the
Commission is but a reaffirmation of the right of a State to stand up for its
nationals. However, the fact is that there is no requirement concerning na-
tionality in the system of the Convention. Thus, in almost all the State
applications brought so far, the alleged victims whose defence was taken by
the applicant State were not its nationals (although certain links may have
existed between the applicant State and the victims).
This solution clearly conforms to the logic of the system of the collective
guarantee established by the Convention. Thus, each contracting State is in
fact responsible for the observance of the guaranteed rights on all the terri-
tory where the Convention applies. In such circumstances, one is tempted to
say that the possibility for a State to bring an application is not so much a
right as a duty and that, in the last analysis, the State merely sets public
action in movement in the interest of the entire European Community of
human rights. The power of the Commission and of the Court to prevent the
parties from withdrawing their applications confirms this interpretation.
The Commission has only been empowered to receive individual applica-
tions since 5 July 1955, the date on which the condition for the entry into
force of the right of individual application (art. 25, para. 4) was fulfilled, six
States having made the declaration of acceptance. As of January 1982, six-
teen of the twenty States which had ratified the convention had made such a
declaration: Austria, Belgium, Denmark, Federal Republic of Germany, France,
Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain,
Sweden, Switzerland and the United Kingdom. It is worth pointing out that
two of these States extended the application of the right of individual applica-
tion to several territories for whose international relations they are responsi-
ble and which do not all belong to the European continent. The Netherlands
so acted with respect to the Dutch West Indies; the United Kingdom with
respect to the following territories: Bermuda, Cayman Islands, Falkland
Islands, Gibraltar, and Turks and Caicos Islands.
It is undeniable that the right of individual application constitutes the
greatest innovation introduced by the Convention since what is involved is
not a mere right of gracious petition, but a genuine right to institute proceed-
ings before an international judiciary organ.
For a person, a non-governmental organization or a group of individuals to
be able validly to bring an application before the Commission, that person,
non-governmental organization or group of individuals must claim to be the
victim of a violation of the protected rights. The notion of victim may be
understood, a priori, in more or less broad terms, with the result that the
ground for action which must be demonstrated by the applicant may be more
or less direct. In actual fact, the question is whether the right of action
provided for by article 25 is a subjective right or, as in the case of applications
brought by States, not so much a right as a duty on the part of the individual
to set European legal procedure in movement. The latter interpretation is
intellectually attractive in that it provides a legal expression of the defacto
interdependence which exists between the observance of human rights from
one individual to another and from one country to another.
The first decisions of the Commission seemed to give a fairly broad interpre-
tation to the notion of victim. Thus, article 25 of the Convention relates
not only to the victim or victims of the alleged violation, but also to any
indirect victim to whom the alleged violation is prejudicial or who has a
genuine personal interest in the termination of the violation (Application
No. 282, ECHR Yearbook I, p. 164). Other decisions such as in the Klass and
the Preikhzas cases seem to limit the meaning of the concept of victim (Applica-
tions Nos. 5029171and 6504174).
It is not enough for the applicant to claim to be the victim of a violation; the
alleged violation must have been committed by a High Contracting Party
which has recognized the right of individual application. Applications lodged
against the following are consequently declared to be inadmissible:
-against States which are not Members of the Council of Europe;

-against private individuals;
-against Member States of the Council of Europe which have signed but
not ratified the Convention;
-against States which have ratified the Convention but which have not
recognized the right of individual application;
-against institutions which are not within the jurisdiction of the Contract-
ing States (cf., for instance, Application No. 235/56, ECHR Yearbook II,
p. 257, alleging the responsibility of the Federal Republic of Germany
for the acts of the Supreme Restitution Court operating on its territory
and set up under an agreement concluded between the German Govern-
466 Karel Vasak
ment and the three Occupying Powers, the United States, the United
Kingdom and France; see also C.F.D.T. case, Application No. 8030177).
Ratione materiae
Any Contracting Party may refer to the Commission any alleged branch
of the provisions of the Convention by another High Contracting Party (art.
24). Thus, a Contracting Party may refer to the Commission any case of
violation of the right protected under Section I which comes to its knowledge.
But it could also refer to the Commission any breach of other provisions of
the Convention, such as articles 25, 28, 31, 32, 57, 59, 60, 61, 62 and 65. In
practice, no case of the latter has ever arisen.
On the request of an individual, the Commission can consider any alleged
violation of the rights set forth in the Convention by one of the Contracting
Parties. These rights are those listed in Section I of the Convention and in
Protocols Nos. 1 and 4 to the Convention.
Are there any other provisions of the Convention or its Protocols which set
forth rights for the individual? The answer is in the affirmative as regards
article 25 which, provided that the State has made a declaration of acceptance
of the right of individual application, ensures that the individual will not be
hindered in the effective exercise of his right to refer applications to the
Commission. However, this right for an individual not to be hindered in the ef-
fective exercise of his right of application to the Commission is not comparable
with other human rights protected by the Commission. It is a right sui gene&
to which, consequently, the ordinary rules of admissibility do not apply.
Moreover, the Commission acknowledged in its decision of 30 June 1959
(Application No. 434158, ECHR Yearbook II, p. 355) that a State which has
signed and ratified the European Convention of Human Rights and Funda-
mental Freedoms must be understood as agreeing to restrict the free exer-
cise of its rights under general international law. to the extent and within
the limits of the obligations which it has accepted under that Convention.
Thus, a right which is not set forth in the Convention may nonetheless be
protected indirectly through recourse to a right explicitly mentioned in the
Convention.
Ratione tempo+
The competence ratione temporis of the Commission extends to all facts
which took place prior to the entry into force of the Convention in respect of
the Contracting Party against which a complaint has been lodged.
In a particular decision, the Commission took the view that facts occur-
ring before the date when the Convention came into force in respect of a
Contracting Party shall be within the competence of the Commission if, and
to the extent that, they may lead to a continuous violation of the Convention
extending beyond that date (Application No. 214156De Becker v. Belgium,
ECHR Yearbook II, p. 215).
In the latter case, what was involved was a judicial decision given before
the Convention came into force with respect to Belgium, which initiated the
automatic application of a legal provision giving rise to a permanent situation
which the applicant considered to be contrary to the Convention.
The competence ratione temporis of the Commission is of an objective
character and is therefore not the consequence of undertakings entered into
by Contracting States towards each other. In the Austria v. Italy case, the
incompetence ratione temporis of the Commission was argued by the Italian
government after expressing a line of reasoning based on the idea of the
reciprocity of the engagements undertaken.
The Italian argument was in substance as follows: in ratifying the Conven-
tion on 26 October 1955, Italy entered into an undertaking solely with respect
to States which at that time were High Contracting Parties. As, however,
the events to which the application related had taken place in 1956 and as the
main part of the proceedings had taken place before Austria became a Con-
tracting Party to the Convention (3 September 1958), consideration of the
application fell outside the competence ratione temporis of the Commission.
The Commission did not agree with the Italian argument. After noting that
no clause of the Convention limited a States right to bring an application to
complaints in regard to facts occurring before that State had ratified the
Convention, the Commission went on to express the following view: The
purpose of the High Contracting Parties in concluding the Convention was
not to concede to each other reciprocal rights and obligations in pursuance of
their aims and the ideals of the Council of Europe. .
The Commission deduced from this that it follows that the obligations
undertaken by the High Contracting Parties in the Convention are essen-
tially of an objective character, being designed rather to protect the funda-
mental rights for the High Contracting Parties themselves. The conclusion
follows from the premises: The fact that in the Assize Court and the Court of
Appeal, Italy had no obligations towards Austria under the Convention does
not debar Austria from now alleging a breach of the Convention with respect
to those proceedings.
(iii) PROCEEDINGSBEFORE THE COMMISSION
Institution of proceedings before the Commission, representation of the

Parties and legal aid
Any claim submitted under article 24 (by a Contracting Party) or article 25
(by a person, a non-governmental organization or a group of individuals)
must be submitted in the form of an application in writing signed by the
applicant or his representative (Rules of Procedure, 37).
The application is addressed to the Secretary-General of the Council of
Europe who transmits it, along with any relevant documents, to the Presi-
dent of the Commission. It is then registered at the Secretariat of the Com-
468 Karel Vasak
mission and assigned a number which is communicated to the applicant. The

proceedings are thus instituted.
The Contracting Parties are represented before the Commission by their
agents who may obtain the assistance of counsel.
Persons, non-governmental organizations and groups of individuals may
present their case in person before the Commission; it is consequently not
compulsory for them to have recourse to a member of the bar. They may,
however, if they so desire, be assisted or represented by a lawyer or by any
other person residing in the territory of a State Party to the Convention,
barring a decision to the contrary, which the Commission may take at any
time (Rules of Procedure, 26, para. 2).
The Convention passes over in silence the question of legal aid for individ-
ual applicants. Although the proceedings before the Commission are free of
charge and the formalities reduced to the strict minimum, an individual ap-
plicant will nevertheless have to meet costs which are frequently consider-
able, principally from the time that his application has been declared to be
admissible. At the proposal of the Commission, the Committee of Ministers
established, by its Resolution (63) 18 of 25 October 1963, for a period of two
years, a system of legal aid. Since then, it has been regularly renewed. Its
operation is governed by the provisions contained in the Addendum to the
Rules of Procedure (arts. 1 to 7 of the Addendum).
Consideration qf the admissibility of the application by the Commission

The proceedings instituted by the lodging of the application entail first of
all an examination of its admissibility. The procedure followed is different, at
the beginning at least, according to whether the application is brought by a
State (Conv., art. 24) or by an individual (art. 25).
If a State application is referred to the Commission, the President, through
the intermediary of the Secretary-General of the Council of Europe, gives
notice of such application to the Contracting Party against which the claim is
made and invites it to submit to the Commission its observations in writing
on the admissibility of such application.
If, on the other hand, an individual application is submitted to the Commis-
sion, it is not immediately communicated to the government against which
the claim is made. The President submits it first of all to a member of the
Commission who, as a rapporteur, carries out a prior examination of its
admissibility. The result of this examination, during which the rapporteur
may request relevant information on matters connected with the application,
from the applicant or the State concerned, is the subject of a report to the
Commission. The latter may then either declare at once that the application
is inadmissible or strike it off its list, or request relevant information from
the applicant or the State concerned and/or invite the said State to present
observations on the admissibility of the application.
Whether the application is by a State or an individual, the Commission
may, before deciding on its admissibility, invite the parties to submit further
observations in writing. It may also invite them, if it considers it useful, to
submit explanations at an oral hearing, which will then be held in camera.
The substance of a State or individual application which comes within the
competence of the Commission will be considered only if it surmounts the
formidable hurdle of admissibility. The great majority of applications are
declared inadmissible because they do not fulfil1 the conditions governing
admissibility. These are laid down by articles 26 and 27 of the Convention
which deserve to be quoted in their entirety:
Art. 26. The Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognized rules of
international law, and within a period of six months from the date on which
the final decision was taken.
Art. 27.1. The Commission shall not deal with any petition submitted
under Article 25 which:
(a) is anonymous, or
(b) is substantially the same as a matter which has already been examined
by the Commission or has already been submitted to another proce-
dure of international investigation or settlement and if it contains no
relevant new information.
2. The Commission shall consider inadmissible any petition submit-
ted under Article 25 which it considers incompatible with the provisions of
the present Convention, manifestly ill-founded, or an abuse of the right of
petition.
3. The Commission shall reject any petition referred to it which it
considers inadmissible under Article 26.
The foregoing conditions governing admissibility can be placed in two
categories:
a) Conditions governing both State applications and individual applications:
- prior exhaustion of all domestic remedies;
- the period of six months from the date on which the final decision was
taken, within which the application must be brought.
b) Specific conditions governing individual applications:
- they must not be anonymous;
- they must not be the same as a matter already examined by the
Commission;
- they must not have already been submitted to another procedure of
international investigation or settlement;
- they must not be incompatible with the provisions of the Convention;
- they must not be manifestly ill-founded;
- they must not constitute an abuse of the right of petition.
The admissibility of any application, brought either by a State or by an
individual, is subject to the prior exhaustion of all dowzestic remedies ac-
cording to the generally recognized rules of international law. In an impor-
470 Karel Vasak
tant decision, the Commission made it clear that this rule is founded upon
the principle that the Respondent State must first have an opportunity to
redress by its own means within the framework of its own domestic legal
system the wrong alleged to have been done to the individual (Application
No. 343, ECHR Yearbook II, p. 413). In other words, the competence of the
Commission is essentially of a subsidiary character, since the State is the
first organ responsible under the Convention for ensuring the observance of
the guaranteed rights. It follows that the lodging of an application does not
create any Litis pendens which can be invoked in the national courts dealing
with the case, the rule of the prior exhaustion of domestic remedies can be
interpreted as imposing a Litis pendens on the Commission (Applications
Nos.1420162, 1477162, 1478/62, 16 December 1964, ECHR Yearbook VI, p.
591).
Any application must be brought within a period of six months from the
date on which the final decision was taken. There is an obvious link between
this rule and that of the prior exhaustion of all domestic remedies which is
contained in the same article 26. Moreover, the Commission has had occasion
to make this clear in interpreting the concept of final decision: The term
final decision. .in Article 26 refers exclusively to the final decision con-
cerned in the exhaustion of all domestic remedies according to the generally
recognized rules of international law, so that the six months period is opera-
tive only in this context (Application No. 214, ECHR Yearbook II, p. 215).
The Commission establishes such a close link between the two rules that no
prescription of the alleged violation of the Convention seems possible once
the applicant has been relieved of the obligation to exhaust all domestic
remedies (31 May 1968, Greek Case: Collection of Decisions, No. 26, p. 80).
The first condition governing admissibility, specific to individual applica-
tion, concerns the identity of the applicant. The Commission does not accept
any anonymous application. An application is not considered to be anonymous
if the case-file relating to it contains any elements enabling the applicant to
be identified (cf. Application No. 361158).
To be admissible, the application must not be substantially the same as a
matter which has already been examined by the Commission. Does this rule
mean that the decisions of the Commission are invested with the authority of
res judicata and that consequently the Commission does indeed exercise
jurisdictional power when it decides on the admissibility of applications? The
answer seems bound to be in the affirmative. True, the Commission has
affirmed in several decisions that considering the scope of its functions and
powers, the Commission believes that, in the matter of the protection of
human rights, it ought not to follow strict rules which would lead to its
decisions being invested with the authority of r-esjudicata, as is the case of
ordinary courts of law when there are eadem personae, eadem res, eadem
causa petendi (cf. Application No. 202, ECHR Yearbook I, p. 190). In fact,
it will reconsider an application declared inadmissible only if there is rele-
vant new information, a notion to which, moreover, it gives a fairly strict

interpretation, seeking always to determine whether the new application
contains material likely to affect the substance of the first application (cf.
Application No. 2606165: Collections of Decisions, No. 26, p. 22).
The application must not have already been submitted to another proce-
dure of international investigation or settlement. This condition governing
admissibility, which has remained fairly theoretical up to now, is likely to find
an application when other international human rights organs may participate
in the investigation or settlement of the same case: such may indeed prove to
be so following the entry into force of the Optional Protocol to the United
Nations, Covenant on Civil and Political Rights which also provides for a
procedure for individual applications. The question of the co-existence of the
two procedures was examined at the Council of Europe by the Committee of
Government Experts on Human Rights, which recommended that the States
parties to both the Convention and the Optional Protocol to the Covenant
formulate, when ratifying the Protocol, a reservation to the effect that they
would give preference and priority to the procedure of investigation and
settlement provided for by the Convention.
The application must not be incompatible with the provisions of the Con-
vention. It follows from the case-law of the Commission that applications
which do not fall within the framework of the competence of the Commission
ratione materiae, ratione personae and ratione loci are considered to be
incompatible with the provisions of the Convention. As regards applications
for which the Commission is not competent ratione temporis, it simply de-
clares them inadmissible ratione temporis.
The application must not be manifestly ill-founded. It is somewhat surpris-
ing at first sight to encounter a condition relating to the substance of a case
when the application has reached only that stage at which its admissibility is
being examined. The Commission has explained itself as follows: the prepara-
tory work for the Convention shows that this special terminology and un-
usual extension of the notion of admissibility is explained by the concern of
the Contracting Parties to prevent applications unworthy of the Commis-
sions attention; whereas, however, the Commission is not thereby entitled
to reject, at the stage of its decision as to admissibility, an application which
is not obviously ill-founded (Application No. 214, ECHR Yearbook II, p.
215). Thus, the applicant must supply proof that his application discloses the
appearance of a violation of a right protected by the Convention.
The application must not constitute an abuse of the right of petition. This
ground of inadmissibility seldom appears in the rulings of the Commission.
Generally speaking, it constitutes a sanction for an abuse of the individuals
right to apply to the Commission. However, the fact that an application was
inspired by motives of publicity or propaganda does not necessarily have the
consequence of making it abusive (Application No. 332, ECHR Yearbook II,
p. 309). The Commission has also availed itself of this ground of inadmissibil-
472 Karel Vasak
ity to sanction the defamatory and insulting statements made by the appli-
cant in regard to the Respondent Government in the course of the proceed-
ings (24 May 1966, Application No. 2424165: Collection of Decisions, No.
20, p. 54).
The decision taken by the Commission on the admissibility of an application
must be accompanied by reasons. The Secretary of the Commission commu-
nicates it to the applicant party. He also communicates it to the respondent
party, except when the application has been rejected de plano, that is to say,
without having been communicated to the State concerned.
A decision declaring an application inadmissible terminates the proceed-
ings. If, however, the Commission accepts the application, the second phase
of the proceedings begins, which now takes place before the Commission
meeting in plenary, whereas up until the entry into force of Protocol No. 3 to
the Convention, such proceedings took place essentially before a Sub-Commission
of seven members.
Examination of admissible applications

During the second phase of the proceedings the Commission has three
tasks:
- to establish the facts;
- to endeavour to achieve a friendly settlement of the ease and, in the
event of failure,
- to draw up a report on the case.
It is to be observed that under new article 29 of the Convention, introduced
by article 1 of Protocol No. 3 to the Convention, the Commission may hence-
forth, after declaring an individual application admissible, unanimously de-
cide to reject the application if, in the course of the examination as to substance,
it notes the existence of one of the grounds of inadmissibility. However, such
cases of rejection have been few.
Establishment of the facts. The Commission, like an examining magistrate,
is provided with very broad powers for the purpose of ascertaining the facts.
Article 28 of the Convention states that the Commission shall undertake
together with the representatives of the parties an examination of the peti-
tion and, if need be, an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities, after an exchange of
views with the Commission. In other words, the Commission is free to
organize the investigation of the application as it sees fit.
In practice, the investigation almost always consists of a written phase and
an oral phase. During the first phase, the parties exchange statements set-
ting forth their motives, conclusions and offers of proof.
The oral phase consists of one or more hearings with the parties, during
which the parties develop their motives and conclusions. The Commission
may, at the request of a party or proprio motu, decide to hear as a witness or
expert or in any other capacity any person whose evidence or statements

seem likely to assist it in the carrying out of its task.
The Commission may also carry out a visit of inquiry or instruct one or
more of its members to do so. Thus, as part of its investigation of the Greek
Application No. 176/56, several members of the Commission visited Cyprus
in order to collect information. Similarly, in the Matznetter Case (Application
No. 2178/64), several members of the Commission went to Austria to hear
witnesses. Similar visits of enquiry have taken place in other cases before the
Commission.
For some years the Commission, when it considered it advisable or more
practical for the efficient carrying out of its tasks, has not hesitated to visit
the countries concerned or to hold hearings in other countries. Thus, in the
Greek Case (Application Nos. 3321,3322,3323 and 3344/67), the Commission,
after having heard some twenty witnesses-often in dramatic circumstances-
in Strasbourg, went to Greece at the beginning of 1969 to continue its investi-
gation of the case. Similarly, in the Ireland v. United Kingdom case, numer-
ous witnesses were heard both in Strasbourg and, for reasons of security, in
Norway; lastly, in the Cyprus vu.Turkey case, a delegation from the Commis-
sion went to the island to hear witnesses.
Attempt to secure a friendly settlement. Once the investigation has been
completed, when the Commission is sufficiently familiar with the views of the
parties and is able to form a first overall idea of the merits of the application,
it places itself at the disposal of the parties with a view to securing a friendly
settlement of the matter.
It is certain that the authors of the Convention attached great importance
to the attempt at conciliation. Several provisions of the Convention reveal
that they wanted at any cost to guard against the chances of a friendly
settlement being jeopardized from the outset. In particular, the rule accord-
ing to which the Commission must meet in camera is calculated to prevent
the case from being discussed by all and sundry and in the heat of passion.
Have the hopes placed in the conciliatory function of the Commission been
disappointed? It might seem so at first sight, since a formal friendly settle-
ment has been reached so far in only a relatively small number of cases (a
total of 22 as of 1 January 1982).
Reality, however, is more complex than one might be led to think by the
texts. For, if one consults the list of applications for which a settlement has
been reached, it is seen, on the contrary, that a solution has been found for
several of them which, while not constituting formally a decision as to whether
there has or has not been a violation of the Convention, have been settled to
the satisfaction of the alleged victims. Thus, a solution was found for the De
Becker Application (No. 214/56), the nineteen applications concerning crimi-
nal proceedings in Austria, the Gericke Application (No. 2294/54), the Televizier
Application against the Netherlands (No. 2690/65), more recently Giama Appli-
cation (No. 7612176)and many others which, while not constituting a friendly
474 Karel Vasak
settlement within the meaning of article 28, nevertneless greatly resemble

such a settlement in the sense that each of the parties benefited from it,
without its being prejudicial to observance of the Convention. What is re-
flected here is a development which is also to be seen in other fields, namely,
the constant introduction of greater flexibility into international legal provi-
sions, to the benefit of less formal methods of settlement not provided for by
the texts.
If the Commission secures a friendly settlement of the application on the
basis of respect for human rights as defined in this Convention, it draws up a
report which is transmitted to the interested States, to the Committee of
Ministers and to the Secretary-General of the Council of Europe. This report
consists of a brief statement of the facts and the terms of the solution reached.
It is published.
Drawing up of the report. If the Commission does not secure a friendly
settlement of the case, it is required to draw up a report on the facts and
state its opinion as to whether the facts found disclose a breach by the State
concerned of its obligations under the Convention.
While, legally, the report is not a verdict since it contains only an opinion
which is not binding upon the parties, it does, however, have the appearances
of one. As in a verdict, the main part of the report is devoted to establishing
whether the facts ascertained comply or do not comply with the provisions of
the Convention.
The report is transmitted by the Secretary of the Commission to the Com-
mittee of Ministers of the Council of Europe; the Commission may, in trans-
mitting the report, make such proposals as it thinks fit (Conv., art. 31,
para. 3), which proposals will be aimed at facilitating settlement of the case.
The report is also transmitted to the States concerned, which are not at
liberty to publish it (Conv., art. 31). Is the report also communicated to an
individual applicant in the case of an application brought before the Commis-
sion under article 25? The Convention is silent on this point. In Rule 61 of its
Rules of Procedure, the Commission has provided that, if a case brought
before it under article 25 is then referred to the European Court of Human
Rights, the report will, barring a decision to the contrary by the Commission,
be communicated to the applicant so that he may present his observations in
writing on the said report.
(iv). TERMINATION OF THE PROCEEDINGS
The proceedings instituted before the Commission under article 24 (State

applications) or under article 25 (individual applications) may lead to any one
of the following:
- a decision by the Commission declaring the application inadmissible;
- a report drawn up by the Commission recording the friendly settlement
of the case:
- a report drawn up by the Commission containing its opinion as to

whether the facts found disclose a violation of the Convention.
Mention must be made of a fourth possibility which is not provided for by
the Conventions: the application may be withdrawn and struck off the Commis-
sions list.
As regards State applications, the Commission, in considering the joint
request of the Greek Government and the British Government to withdraw
Application No. 299157 without deciding on the merits, has declared that
when an application alleging a violation of the Convention has been referred
to it, the question of the withdrawal of the application concerns it as well as
the parties and (that) it must be sure that the withdrawal of the case is likely
to help and not hinder the realization of the objectives of the Convention.
This attitude on the part of the Commission is to be compared with the right
of the European Court of Human Rights to refuse to recognize the with-
drawal of the applicant party, even if such withdrawal is accepted by the
other parties.
Concerning individual applications, the decision by which the Commission
decides to strike them off its list constitutes a termination of the proceedings
which, while not expressly provided for by the Convention, is nevertheless
inherent in the exercise of any judicial bodys functions. In the first years
after it came into operation, the Commission confined itself to mentioning
the decision to withdraw an application in the minutes drawn up after each
application had been examined. Increasingly, however, the Commission
strikes an application off its list by virtue of a genuine decision as to ad-
missibility.
While there has been a change in form, the Commissions position as to
substance has never varied: acting along the lines indicated by article 28 (b)
with respect to a friendly settlement, the Commission has always asserted
that it is free to take or not to take action upon a request formulated by an
applicant that an application be struck off its list (cf. Dec. of 2 Oct. 1964,
Applications Nos. 2169, 2204, 2326164:Collection of Decisions, No. 14, p. 76).
Henceforth the Commission may, under Rule 43 of its Rules of Procedure,
strike an application off its list unless it considers that any reason of a
general character affecting the observance of the Convention justified fur-
ther examination of an application.
The report containing the Commissions opinion as to whether the facts of
the case disclose or do not disclose a breach of the Convention, far from
bringing the case to an end, is on the contrary the starting point for a new
procedure which culminates in the decision as to the merits. At the end of a
period of three months from the date of the transmission of the report to the
Committee of Ministers of the Council of Europe, two courses of action are
open:
- before the expiry of the three months period the case has been referred
to the Court by the Commission or by the Contracting Party concerned;
Table 16.1
Applications Declared Admissible
Parties Date of References Alleged State of
Serial Registration Applicant decision on for the violation(s) proceedings as
number number Resp. State admissibility decision accepted of 1 Ott 1980
A. Inter-State Applications
1 176156 Greece vi 2 June Yearb. 2, Art.3 Conv. Res. (59) 12
U.K. 1956 pp. 182-187 of 20 April
1959
2 299157 Greece vl 12 Oct. Yearb. 2, Art.3 Conv. Res. (59) 32
U.K. 1957 pp. 187-197 of 14 Dec.
1959
3 788/60 Austria vi 11 Jan. Yearb. 4, Art.61;652; Res. (63)DH 3
Italy 1961 pp. 112-183 603d; 14 Conv. of 23 Oct.
1963
4 3321/67 Denmark
to 3322167 Norway 24 Jan. Yearb. 2, Art. 5,6,8,9, Res. DH(70)l
7 3323167 Sweden 1968 pp. 689-729 10,11,13,14, of 15 April
3344167 Netherlands 15 Conv. 1970
v/Greece
8 4448170 Denmark 16 July Yearb. 13, Art.3,6 Struck off
Norway 1978 pp. 123-137 Conv. list
Sweden
v/Greece
9 5310/71 Ireland vi 1 Oct. Yearb. 15, Art.3,5,6 Judgement of
U.K. 1972 pp. 81-257 in associa- 18 Jan.
tion with 1978
art. 15 Conv;
14 Conv.
10 6'730174 Cyprus vi 26 May Yearb. 18, Art.1,2,3,4, Res.DH (79)
11 6950/75 Turkey 1975 pp. 83-124 5,6,8,13,14, of 19 Jan.
Conv.; Art.1 1979
Add.
Protocol.
12 8007177 Cyprus vi 10 July Yearb. 21, Art.1,2,3,4, Pending
Turkey 1978 p. loo 5,6,8,13,14, before the
Commission
B. Irtdividual Applications
1 214156 De Becker 9 June Yearb. 2, Art. 10 Conv. Judgement of
v/Belgium 1958 pp. 215-255 27 March 1962
2 332157 Lawless 30 Aug. Yearb. 2, Art.5,6,7, Judgement of
v/Ireland 1958 pp. 309-341 Conv. 1 July 1961
3 343157 Nielsen 2 Sept. Yearb. 2, Art.691 Conv. Res.(61)28 of
v/Denmark 1959 pp. 413-473 25 Oct. 1961
4 52469 Ofner 19 Dec. Yearb. 3, Art.61-3c Res(63)DH 2
v/Austria 1960 pp. 323-355 Conv. of 5 April 1963
5 17159 Hopfinger 19 Dec. Yearb. 3, Art.Giil-3c Res.(63)DH 1
v/Austria 1960 pp. 371-393 Conv. of 5 April
1963
6 59669 Pataki 19 Dec. Yearb. 3, Art.(il-and
v/Austria 1960 pp. 357-371 3c Conv.
Res.(63)DH 2
of 16 Sept.
7 789160 Dunshirn 15 March Yearb. 4, Art.651 and 1963
v/Austria 1961 pp. 187-197 3c Conv.
8 834160 Glaser 28 March Yearb. 6, Art.61-3b Res.(64)DH 1
v/Austria 1963 pp. 140-151 and c Conv. of 5 June 1964
Steinko 1, Art.6 Conv.
9 964160
v/Austria
Table 16.1 (Continued.

number number Resp. State admissibility decision accepted of 1 act 1980
B. Indir~idual Applicntions
10 1180/61 Steinhauser Art.6 Conv. Res(64)DH 1
v/Austria of 5 June 1964
11 1207161 Maurer Art.6 Conv.
v/Austria
12 1308161 Pietsch ,, A&6$1-3c
v/Austria Conv.
13 1526162 Eichberger ,, Art.6 Conv.
vlAustria
14 1543162 Nemec 0
Art.61-3c
v/Austria Conv.
15 1567162 Lettl ,, Art.G$l-3b
v/Austria and c Conv.
16 1632/62 Cerny I,
Art.6,51a
v/Austria Conv.
17 1634162 Schleritzko Art.691-3b
vlAustria and c Conv.
18 1735162 Albrecht 28 March Yearb. 6, Art.6 Conv. Res.(64)
v/Austria 1963 pp. 140-151 DHlof
5 June 1964
19 1631162 Vesezky 20 June Yearb. 7, Art.6 Conv.
v/Austria 1963 pp. 419-435
20 X40/62 Schostal 20 June Yearb.7, Art.6 Conv.
v/Austria 1963 pp. 419-435
21 1549/62 Malzer 2 Sept. Yearb. 7, A&6$1-3c
v/Austria 1963 pp. 253-263 Conv.
22 1446162 Plischke 19 June Yearb.6, Art.61-3c Res. (65)
v/Austria 1963 pp. 253-263 Conv. DHlof
9 April 1965
23 1474162 23 inhabi- 26 July 1963 Coll. Dec. Art.8-14 Judge-
tants of 11, PP. Conv.; art.2 ment of
Alsemberg 50-58 Add. Prot. 23 July 1968
v/Austria
24 1677162 5 inhabi- 26 July Yearb. 7, Art.8,14 n
tants of 1963 pp. 141-163 Conv.; art.2
Kraainem Add.Prot.
v/Belgium
25 1691/62 64 inhabi- 26 July Yearb. 7, Art.8,14
Antwerp Add.Prot.
v/Belgium
26 1769163 Charlent 26 July Yearb. 6, Art.814
and consorts in- 1963 pp. 445-459 Conv.; art.2
habitants of Add. Prot.
Ghent vi
Belgium
27 1994163 57 inhabi- 5 March Yearb. 7 Art.8,14 n
Louvain Add.Prot.
v/Belgium
28 2126164 Inhabitants 29 June Yearb. 7, Art.8,14 n
of Vilvorde 1964 pp. 281-299 Conv.; art.2
v/Belgium Add.Prot.
Table 16.1 (Continued).

B. Iudicidual Applicafiom
29 1727162 Boeckmans 29 Oct. Yearb. 6, Art.691,2, Friendly
v/Belgium 1963 pp. 371-423 3c Conv. settle-
ment
30 2013163 Inhabitants 5 March 1964 Published Struck
of Mol off list
v/Belgium
31 2122164 Wemhoff 2 July 1964 Yearb. 7, Art.53; Judgement
v/FRG pp. 281-299 61 Conv. of 27 June 1968
32 1936163 Neumeister 6 July 1964 Yearb. 7, Art.593; Judgement
v/Austria pp. 225-251 681 Conv. of 27 June 1968
E
33 1602162 Stogmtiller 1 Oct. 1964 Yearb. 7, Art.503 Judgement
v/Austria pp. 169-193 Conv. of 10 Nov. 1969
34 2178164 Matznetter 16 Dec. 1964 Yearb. 7, Art.503; Judgement
v/Austria pp. 331-349 691; and of 10 Nov.
651 in 1969
associa-
tion with
594 Conv.
35 2209164 Inhabitants 15 Dec. 1964 Inhabitants Art.8,14 Res.DH(74)l of
of Fourons of Fourons Conv. ; 30 Apr. 1974
v/Belgium case, EC, art.2
pp. 85-94 Add. Prot.
36 2294164 Gericke 16 Dec. 1964 Yearb. 7, Art.503 Struck
v/FRG pp. 349-557 Conv. off list
Source: RDHIHRJ VIII, 2-3. pp. 475-490. Table prepared by D. Giuliva
FRG-Federal Republic of Germany
37 2299164 Grandrath 23 April 1965 Yearb. 8, Art.14,4, Res(67)DH 1
vlFRG pp. 325-337 9 Conv. of 29 June 1967
38 2120164 Poerschke 14 Feb. 1966 Yearb. 9, Art.583, Friendly
v/FRG pp. 329-391 691 Conv. settle-
ment
39 2208164 Binet 14 Feb. 1966 Yearb. 9, A&5,6, Struck
v/Belgium pp. 392-407 13 Conv. off list
40 1850/63 Koplinger 29 March 1966 Yearb. 9, Art.554; Res(69)DH 1 of
v/Austria pp. 241-267 Sl and 1 May 1969
3c Conv.
41 2686165 Zeidler- 13 Dec. 1966 Yearb. 9, Art.3 Res(68)DH 1 of
Kornmann pp. 495-511 Conv. 26 June 1966
vlFRG
42 2690165 Televizier 15 Dec. 1966 Yearb. 9, Art. 10, Struck
v/Nether- pp. 513-551 14 Conv. off list
lands
43 2689/65 Delcourt 6 April Yearb. 10, Art.681 Conv. Judgement
v/Belgium 1967 pp. 283-321 of 17 Jan. 1970
44 2832/66 De Wilde 7 April Yearb. 10, Art.5$1,3,4; Judgement
v/Belgium 1967 pp. 420-459 art.4,6,3,13 of 18 June 1971
Conv.
45 2835166 Ooms
v/Belgium
46 2899166 Versyp
v/Belgium
47 2991166 Alam and 15 July Yearb. 10, Art.8, 691 Friendly
Khan vi 1967 pp. 479-507 Conv. settlement
U.K.
48 2604165 Jentzsch 19 Dec. Yearb. 10, Art.53 Conv. Res.DH(71)2
v/FRG 1967 pp. 219-239 of 5 May 1971

B. Individual Applicatiom
49 2396165 X v/FRG 20 Dec. 1967 Not Admissible Struck off
published in tot0 list
50 2257164 Soltikow 5 April 1968 Yearb. 11, Art.691 Conv. Res.DH(7l)l
v/FRG pp. 181-229 of 19 Feb. 1971
51 2614165 Ringeisen 18 July Yearb. 11, Art.53,61 Judgement
v/Austria 1968 pp. 269-321 Conv. of 16 July 1971
52 2645165 Scheichel- 3 Oct. Yearb.12, Art.681 Conv. Res.DH(71)3
bauer 1969 pp. 157-173 of 12 Nov.
v/Austria 1971
53 3897168 Sew 17 July Coll. Dec. Art.631 Conv. Friendly
v/FRG 1970 35, pp. 83-96 settlement
54 4404170 25 appl.- 10 Oct. Yearb. 13, Art.3,5,14; Res.DH(77)2
to and by 1970 pp. 929- and art. 8 of 21 Oct.
78 others East Afri- 1007 combined 1977
can Asians with art. 14
v/U.K. Conv.
79 4115169 Knechtl 17 Dec. Yearb. 13, Art.631 Conv. Friendly
v/U.K. 1970 pp. 731-763 settlement
80 4501170 6 appl. 18 Dec. Yearb. 13, Art.3,5,14; Res.DH(77)2
to and by East 1970 pp. 1015- and art.14 of 21 Oct.
85 4526170 African 1027 combined 1977
to Asians with art.8
4530/70 v/U.K. Conv.
86 4340/69 2 Feb. Yearb. 14, Art.2,3 Conv. Friendly
Herold 1971 pp. 353-399 settlement
v/Austria
87 4451170 Golder 30 March Yearb. 14, Art.Gl; Judgement
v/U.K. 1971 pp. 417-445 513 Conv. of 25 Feb. 1975
88 4465170 Vampel 31 March Yearb. 14, Art. 5B3 Struck off
v/Austria 1971 pp. 477-497 Conv. list
89 4475170 Svenska 24 May 1971 Yearb. 14, Art.11 Conv. Rejected
Lotsforbun- pp. 497-523 under art.
det 29 Conv.
v/Sweden
90 4517170 Huber 14 July Yearb. 14, Art.651 Conv. Res.DH(75)2
v/Austria 1971 pp. 573-616 of 15 April 1975
91 4733171 Karnell and 13 Dec. 1971 Yearb. 14, Art.2 Add. Struck off
Hardt pp. 677-693 Prot. com- list
vlsweden bined with
art. 14 Conv.
92 5207171 Raw 13 Dec. Yearb. 14, A&2,3 Conv. Rejected
viFRG 1971 pp. 699-711 under art,
29 Conv.
93 2551165 La Haye
94 3155/67 De Wilde
95 3174167 NYS 17 Dec. Yearb. 14, Art.594 Conv. Res.DH(72)l
96 3499/68 Swalens 1971 pp. 138-161 of 16 Oct. 1972
v/Belgium
97 4464170 National 8 Feb. Yearb. 15, Art.11 Conv. Judgement
Union of 1972 pp. 309-329 of 27 Oct. 1975
Belgium
Police
v/Belgium

B. Individual Applicatiorzs
98 4897171 22 March Yearb. 15,
Gussenbauer 1972 pp. 449-467 Art.4,14 Friendly
99 5219/71 v/Austria 14 July Yearb. 15, Conv.; art. 1 settlement
1972 pp. 559-563 Add. Prot.
100 5100/71 Five
to 5101171 Dutch
104 5102/71 soldiers 17 July Yearb. 15, Art.5,6,14 Judgement
5354172 v/Nether- 1972 pp. 508-559 Conv.; and of 8 June
5370172 lands for last 2 1976
applications,
art. 10, 11,
17, 18 Conv.
105 5614172 Svenska 20 July 1972 Yearb. 15, A&11,13,14 Judgement of
Lokmanna- pp. 594-603 Conv. 6 Feb. 1976
fiirbundet
v/Sweden
106 4771171 Kamma v/ 21 July Yearb. 15, Art. 18 com- Res.DH(75)l
Nether- 1972 pp. 414-443 bined with of 13 March
lands art.5 Conv. 1975
107 5095171 Kjeldsen vi 16 Dec. Yearb. 15, Art.2 Judgement of
Denmark 1972 pp. 482-509 Add. Prot. 7 Dec. 1976
108 5920172 Busk- 19 July Co11Dec. Art.2 Judgement of
Madsen 1973 44, Add. Prot. 7 Dec. 1976
v/Denmark pp. 96-100
109 5926172 Pedersen vi 19 July Coll. Dec. Art.2 Judgement of
Denmark 1973 44, Add. Prot. 7 Dec. 1976
pp. 96-100
110 5589172 Schmidt and 18 Dec. Yearb. 15, A&11,14 Judgement of
Dahlstrom 1972 pp. 577-593 Conv. 6 Feb. 1976
v/Sweden
111 E&77/72
112 5578172
113 5579172
114 5580172 Donnelly 5 April Coll. Dee, Art.3 Conv. Rejected
115 5581172 and others 1973 43, PP. under art. 29
116 5582172 v1U.K. 122-149 Conv.
117 5583172
118 5765172 Mellin 16 July Coll. Dec. Art.G$l Conv. Friendly
v/FRG 1973 44, PP. settlement
E 119 5961172 Amekrane 11 Oct.
81-92
Coll. Dec. Art.3,54, Friendly
v1U.K. 1973 44, PP. 8 Conv.; settlement
101-114 art.51,2,3
Conv.
120 5178172 De Geillu- 12 Oct. Coil. Dec. Art.l0,14 Res.DH(77)
streerde 1973 44, PP. Conv. lof17
Pers 13-24 Feb. 1977
v/Nether-
lands
121 6066173 Levy 17 Dec. Coll. Dec. Art.553 Conv. Res.DH(76)l
v/FRG 1973 45, PP. of 10 March
99-108 1976

B. Zrtdiuidual Applicatiom
122 5943172 Handyside 4 April Coll. Dec. Art. 10 Conv.; Judgement of
v/U.K. 1974 45, PP. art.1 Add. 7 Dec. 1976
23-53 Prot. com-
bined with
art.10 Conv.
123 6242173 Brtickmann 27 May Coll. Dec. Art.61,7,8 Struck off
vlFRG 1974 46, PP. 9,10,11 list
202-210 Conv.; art.
3, 551~ and
f Conv.
124 5856172 Tyrer 19 July Coll. Dec. Art.3 Conv. Judgement of
v/U.K. 1974 46, PP. combined 25 April 1978
128-133 with art. 14
Conv.
125 6181173 Hatti 5 Oct. Coll. Dec. Art. 651 Res.DH(76)3
/ vIFRG 1974 46, PP. Conv. of 19 Nov.
188-201 1976
126 5849172 Miiller 16 Dec. Dec. and Art.1 Add. ResDH(7612
v/Austria 1974 Rep. 1, Prot. com- of 7 April
pp. 46-50 bined with 1976
art. 14 Conv.
127 5029171 Klass and 18 Dec. Dec. and Art.Gl, Judgement of
others 1974 Rep. 1, 851, 13 6 Sept. 1978
v/FRG pp. 20-40 Conv.
128 6538174 Times, 21 March Yearb. 18, Art.6, 10 Judgement of
News- 1975 pp. 203-236 Conv. 26 April 1979
papers,
Sunday
Times,
Evans
v/U.K.
129 6232173 Konig 27 May Yearb. 18, Art.GEil Judgement of
vlFRG 1975 pp. 179-191 Conv. 28June 1978
130 6301173 Winter- 30 Sept. Yearb. 18, Art. 51 Judgement of
werp vi 1975 pp. 192-201 Conv. 24 Oct. 1979
Nether-
lands
131 6833174 Marckx vi 29 Sept. Yearb. 18, Art.3,8 Judgement of
Belgium 1975 pp. 248-275 and 14 13 June 1979
Conv.
132 5613172 Hilton vi 5 March Yearb. 19, Art.3,6 ResDH(79)3
U.K. 1976 p. 257 Conv. of 21 April
and 8 Conv. 1979
133 6281173 Neubecker 5 March Yearb. 19, Art.651 and Friendly
v/FRG 1976 p. 305 2 Conv. settle-
ment,
Dec. and
Rep. VIII,
p. 30
134 6210/73 Luedicke 11 March Yearb. 19, Art.693e; Judgement of
vlFRG 1976 p. 291 art. 14 Conv. 28 Nov. 1978
135 6959175 Brtigge- 19 May Dec. and Art.8,9,11, Res.DH(78) 1 of
mann 1976 Rep. V 12 and 14 17 May 1978
v/FRG p. 103 Conv.

136 6650174 Liebig vi 15 July Yearb. 19, Art.692 Friendly

FRG 1976 p. 331 Conv. settlement
137 6877175 Belkacem vi 27 Sept. Dec. and Art. 693e, Judgement of
FRG 1976 Rep. VI art. 14 28 Nov. 1978
p. 76 Conv.
138 7132175 Koc v/FRG 27 Sept. Dec. and Art. 63e, Judgement of
1976 Rep. VI, art. 14 28 Nov. 1978
p. 135 Conv.
139 6878175 Lecompte v/ 6 Oct. Dec. and Art.6 and Pending
Belgium 1976 Rep. VI, 11 Conv. before
E
p. 79 the
court
140 7412176 Haase vi 11 Dec. Dec. and Art.5#3 and Res.DH(78)2
FRG 1976 Rep. VII, 651 Conv. of 18 April
p. 127 1978
141 7341176 Eggs vi 11 Dec. Dec. and Art.5lla, Res.DH(79)7 of
Switzerland 1976 Rep. VI, 4 and 6 19 Oct. 1979
p. 170 Conv.
142 6224173 Kiss VI 16 Dec. 1976 Dec. and ArtGO Conv. Res.DH(78)3 of
U.K. Rep. VII, 19 April 1978
p. 55
143 6694174 Artico v/ 1 March 1977 Dec. and Art.653~ Judgement of
Italy Rep. VIII, Conv. 13 May 1980
p. 73
144 7367476 Guzzardi 1 March Dec. and Art.3,5,6,8 Pending
v/Italy 1977 Rep. VIII, and 9 Conv. before the
p. 185 Court
145 6903175 Deweer vi 10 March Dec. and Art.691,2 and Judgement
Belgium 1977 Rep.VIII, 3 Conv. of 27 Feb.
p. 90 1980
146 7238175 Van 10 March Dec. and Art.6 and 11 Pending
Leuven- 1977 Rep. VIII, Conv. before
Demeyere p. 140 the Court
v/Belgium
147 6840/74 X v/U.K. 12 May 1977 Dec. and Art.3 and 5 Pending
Rep.X, Conv. before
P.5 the Com-
mission
148 6998175 Hinchliff 14 May Dec. and Art.3 and 5 Pending
v/U.K. 1977 Rep. VII, Conv. before the
p. 106 Committee of
Ministers
149 6870175 X v/U.K. 14 May 1977 Dec. and Art.3 and 5 Pending
Rep. X, Conv. before
p.37 the Com-
mission
150 7050175 Arrowsmith 16 May Dec. and Art.9 and 10 Res.DH(79)4
v/U.K. 1977 Rep. VIII, Conv. of 12
p. 123 June 1979
151 7360176 Zand vi 17 May Dec. and Art.691 Conv. Res.DH(79)6 of
Austria 1977 Rep. VIII, 12 June 1979
p. 167
152 6323173 Bocchieri 19 May Dec. and ArtGO Struck off
v/Italy 1977 Rep. VIII, Conv. list
p. 59

B. Individual Applicatims
153 6289173 Airey VI 7 July Dec. and Art.691,8,13 Judgement
Ireland 1977 Rep. VIII, and 14 Conv. of 9 Oct.
p. 42 1979
154 7215175 X v/U.K. 7 July 1977 Dec. and Art.8 and 14 Res.DH
Rep. XI, Conv. (79)5 of
p. 36 12 June 1979
155 7601/76 Young and 11 July 1977 Dec. and Art.S,lO,ll Pending before
James vi Rep. IX, and 13 Conv. the Court
U.K. p. 126
?6 156 7710176 Schiesser v/ 12 July 1977 Dec. and Art.593 Conv. Judgement of
Switzerland Rep. X, 4 Dec. 1979
p. 238
157 7629176 Krzyeki vl 14 July 1977 Dec. and Art.5 Conv. ResDH(78)4
FRG Rep. IX, of 13 Oct. 1978
p. 175
158 5947172 X
159 6205173 Y
160 7052175 Colne
161 7061175 Tuttle 4 Oct. 1977 Dec. and Art.B,lO and Pending
162 7107175 Z Rep. X 13 Conv. before
163 7113175 McMahon p. 154 the Com-
164 7136175 Carne
v/U.K.
165 7114175 Hamer v/ 13 Oct. 1977 Dec. and Art. 12 Conv. Pending before
U.K. Rep. X, the Committee
p. 174 of Ministers
166 7614176 Nagel vi 6 Dec. 1977 Dec. and Art.Gl Conv. Friendly
FRG Rep. XII, settlement
p. 97
167 7648176 Christinet 6 Dec. 1977 Dec. and Art.5 Conv. Res.DH(79)9
vi Switzer- Rep. XI, of 25 April 1979
land p. 175
168 6504/74 Preikhzas vi 7 Dec. 1977 Dec. and Art.GEjl Conv. Res.DH(79)S
FRG Rep. XII, of 19 act. 1979
P. 5
169 7759177 Buchholz vi 7 Dec. 1977 Dec. and Art.681 Conv. Pending before
FRG Rep. XII, the Committee
p. 163 of Ministers
sc-r 170 7397176 Peyer vi
Switzerland
13 Dec. 1977 Dec. and
Rep. XI,
Art.5 Conv. Friendly
settlement
P. 58
171 6699174 X v/FRG 15 Dec. 1977 Dec. and Art.3 and 8 Friendly
Rep. XI, Conv. settlement
p. 16
172 7511176 Campbell vi 15 Dec. 1977 Dec. and Art.3 Conv. Pending before
U.K. Rep. XII, and Art.2, the Committee
p. 49 Prot. 1 of Ministers
173 7743176 Cosans vi 15 Dec. 1977 Dec. and Art.3 Conv. Pending before
U.K. Rep. XII, and Art.2, the Committee
p. 140 Prot. 1 of Ministers
174 7612175 Giama VI 15 Dec. 1977 Art.3 Conv. Friendly
Belgium settlement

B. I,dikhta~ Applicntiom
175 6871175 Caprino vi 3 March 1978 Dec. and Art.5(4) Pending before
U.K. Rep. XII, Conv. the Committee
p. 14 of Ministers
176 7806177 Webster vi 3 March 1978 Dec. and Art.S,lO,ll, Pending before
U.K. Rep. XII, and 13 Conv. the Court
p. 168
177 7525176 Dudgeon vi 3 March 1978 Dec. and Art.8 and 14 Pending
U.K. Rep. XI, Conv. before the
p. 117 court
G
N 178 7640176 Geerk vi 7 March 1978 Dec. and Art.6 and 10 Friendly
Switzerland Rep. XII, Conv. settlement
p. 103
179 7438176 Ventura vi 9 March 1978 Dec. and Art.5 and 6 Pending
Italy Rep. XII, Conv. before the
p. 38 Commission
180 7819177 Campbell vi 6 May 1978 Dec. and
U.K. Rep. XIV,
p. 186
181 7654176 Van Ooster- 9 May 1978 Dec. and Pending
wijck vi Rep. XIV, before the
Belgium p. 133 Commission
182 7604176 Foti
to 7719176 Lentini
185 7781176 Cenerini 11 May 1978 Dec. and Art.651
7913177 Gully Rep. XIV,
vi Italy p. 133
186 7907177 X vi U.K. 12 July 1978 Dec. and Art.27 Conv.
Rep. XIV, Art.2 Add.
p. 205 Prot.
187 7464 Karrer and 5 Dec. 1978 Dec. and Art.l.a.2
others vi Rep. XIV, Add.Prot.
Austria p. 51
188 8224178 Bonnechaux 6 Dec. 1978 Dec. and Art.563 Pending before
v/Switzer- Rep. XV, Conv. the Committee
land p. 211 of Ministers
189 7975177 Bonazzi 13 Dec. 1978 Dec. and Art.531, Pending before
s v/Italy Rep. XV, 4 Conv. the Commission
w p. 169
190 7598176 Kaplan 14 Dec. 1978 Dee and Art.GIl
v/U.K. Rep. XV, Conv.
p. 120
191 7151175 Sporrong 5 March 1979 Dec. and Art.6
v/Sweden Rep. XV, Conv.
p. 15
192 7152175 Lonnroth 5 March 1979 Dec. and Art.6
vlSweden Rep. XV, Conv.
p. 15
193 8186/78 X v/U.K. 1 May 1979 Art. 12
Conv.
194 8244178 Singh and 2 May 1979 Art.8,
Uppal vi 14 Conv.
U.K.

B. Imficid/tnf Applicntio,~~
195 8130178 Eckle vi 9 May 1979 Dec. and Art.Gl
FRG Rep. XVI, Conv.
p. 120
196 8209178 Sutter vi 11 July 1979 Dec. and Art.691 1,
Switzerland Rep. XVI, Conv.

p. 179
197 7906177 Van Droo- 5 July 1979 Art.554 Pending before
genbroeck and 591 the Committee
s v/Belgium Conv. of Ministers
le 6 July 1979 Art.691,2, Pending before
198 8269178 Adolf VI
Austria 3 Conv. the Commission
199 7984177 Pretto v/ 11 July 1979 Art.651 Pending
Italy Conv. before the
200 8273178 Axen vi 11 July 1979 Art.651 Commission
FRG Conv.
201 8339/79 Scherten- 12 July 1979 Art.503 0
leib v/Swit- Conv.

zerland
202 8304178 Corigliano 2 Oct. 1979 ArtGO 1,
v/Italy Conv.
203 7161175 6 prisoners 11 Oct. 1979 Art.8 Pending
to 7291175 correspon- Conv. before the
208 7939177 dence cases Commission
8111177 v1U.K.
8246178
8253178
209 7299175 Albert vi 4 Dec. 1979 Art.6,
Belgium 11 Conv.
210 7496/76 Le Compte 4 Dec. 1979 Art.6,
vi Belgium 11 Conv.
211 7630176 Reed vi 6 Dec. 1979 A&3,6,
U.K. 8,Conv.
212 8022177 A 8 Dec. 1979 Art.5,8
to 8025177 B v/U.K. Conv.
214 8027177 C
215 7987177 X Indus- 13 Dec. 1979 Art.691
tries VIAUS- Conv.
tria
216 8289/78 Peschke VI 5 March 1980 A&6$1
Austria and 683~
Conv.
217 8427178 Hendricks 13 March 1980 Art.8,691
v! Nether- Conv.
lands
218 7365176 Gleaves vi 13 March 1980 A&851,2
U.K. Art. 1002
Conv.
219 8077177 Baker vi 13 March 1980 Art.SP2
U.K. Conv.

B. Zudirid/tal Applications
220 7468176 7 Swiss 8 July 1980 Art.561,94 Pending
to 7938177 men under Art.51,4 before the
227 8106177 military Art.581 Commission
8018177 service Art.511
8325178 Art.51,4
8778179 Art.5
8797179 Art.5Pl Conv.
228 7889177 Arrondelle 15 July 1980 Art.6,8,13
v/U.K. Conv.,Art.l
Prot.l,Art.l4
combined
with
art.8,art.l
Prot. 1
229 8692/79 Piersack 15 July 1980 Art.691 Conv.
vi Belgium
- the case not having been referred to the Court within the three months
period, the Committee of Ministers is required to take the decision (cf.
Conv., art. 32).
There thus exists two organs with powers of decision in the system of the
Convention: a judicial organ, the European Court of Human Rights, and a
political organ, the Committee of Ministers of the Council of Europe.
(b). A political decision-making organ: the Committee of Ministers of the

Council of Europe
(i). GENERALREMARKS
The Committee of Ministers, as the organ which acts on behalf of the Coun-
cil of Europe (Statute, art. 13), already plays a part in the workings of the
Convention on account of the links which attach the Convention to the Coun-
cil of Europe.
The Committee of Ministers is thus required to elect the members of the
Commission. While it does not elect the judges of the Court, it nevertheless
plays a part in their election since, after grouping together the lists of candi-
dates submitted by the Member States of the Council, it submits a single list
to be voted on by the Assembly.
As the expenses of the Commission are, according to article 58 of the
Convention, borne by the Council of Europe, it falls to the Committee of
Ministers to meet these expenses within the framework of the budget of the
Council. Expenses include: inter alia, daily compensation to members of the
Commission and judges of the Court, determined by the Committee of Minis-
ters. In accordance with article 38 of the Statute, the expenses of the Council
are shared between all the Member States in such proportions as are deter-
mined by the Committee of Ministers on the basis of the population of each
State. The Committee approves the budget of the Council which is submitted
to it each year by the Secretary-General. In practice, a separate section is
devoted to the Commission and the Court.
Lastly, the Committee of Ministers plays a role in the execution of the
judgments delivered by the Court. Thus, article 54 of the Convention stipu-
lates: The judgment of the Court shall be transmitted to the Committee of
Ministers which shall supervise its execution. It is to be observed straight
away that the Committee of Ministers is not responsible for the execution of
the judgment but merely for supervising its execution. The nuance is impor-
tant: it may be assumed from it that the authors of the Convention expected
the judgments of the Court to be executed voluntarily and in their entirety.
In the event of difficulties, the Committee of Ministers could probably not
make do with simply drawing up a report noting a default. It then falls to it to
act in the framework of the Statute of the Council of Europe, possibly going
so far as to decide that the guilty State should be suspended or even
expelled from the Council of Europe.
But the Convention does not merely provide for recourse to the Committee
498 Karel Vasak
of Ministers each time that its links with the Council of Europe make it
necessary. By virtue of article 32, the Committee of Ministers in fact be-
comes the complement to the Court in that it is assigned powers of decision in
those cases not referred to the Court.
Article 32 stipulates:
1. If the question is not referred to the Court in accordance with Article 48
of this Convention within a period of three months from the date of transmis-
sion of the Report to the Committee of Ministers, the Committee of Ministers
shall decide by a majority of two thirds of the members entitled to sit on the
Committee whether there has been a violation of the Convention.
2. In the affirmative case the Committee of Ministers shall prescribe a
period during which the High Contracting Party concerned must take the
measures required by the decision of the Committee of Ministers.
3. If the High Contracting Party concerned has not taken satisfactory
measures within the prescribed period, the Committee of Ministers shall
decide by the majority provided for in paragraph 1 above what effect shall be
given to its original decision and shall publish the report.
4. The High Contracting Parties undertake to regard as binding on them
any decision which the Committee of Ministers may take in application of the
preceding paragraphs.
In a Convention wholly based on the idea of legal protection of human
rights, the role assigned to a political organ as a decision-making body is
bound to be surprising. The result of a compromise, article 32 is at the same
time the consequence of resignation accompanied by hope. Resignation on
the part of those who championed a Court of Human Rights with compulsory
jurisdiction, who, in the face of the insurmountable resistance they encoun-
tered in attempting to set it up, had to accept an optional Court. The grounds
for hope derive from the two-thirds majority vote by which the Committee
has to decide whether there has been a violation each time that a case is not
referred to the Court: for the first time indeed, the rule of unanimity was
abandoned within the Committee of Ministers in a field of some importance
for the Council of Europe.
(ii). ~RGANI~ATI~~~ANDW~RKING~FTHE COMMITTEE 0~ MINISTERS
When it is called upon to exercise the functions of a decision-making organ of

the Convention, the Committee of Ministers retains the same organization
and, in principle, operates according to the same rules as when it acts as an
organ of the Council of Europe. Article 32 of the Convention, it is true,
contains no provision urging the Committee of Ministers to adopt proper
rules of procedure and so far it has not considered it necessary to do so. It has
simply drawn up a number of rules concerning particular points, somewhat
unmethodically and almost as problems have arisen.4
The Committee of Ministers consists of one representative for each Mem-
ber State of the Council of Europe. This being so, a government which is
,-...II.----.---- - I--. .---. -.. ..I --._- t.. I^._.- -,....- I-_.-._-._,_..I.I...
_...
-,... .-_
represented on the Committee of Ministers is fully empowered to participate

in the exercise of the functions and powers defined in article 32, even if it has
not ratified the European Convention of Human Rights. Similarly, the par-
ties to a dispute retain the right to vote and consequently participate in the
discussions and in the decision. This situation has not failed to be criticized
since a State becomes at once judge and party. It is to be recognized, how-
ever, that this is the consequence of a political organ being assigned judicial
functions.
(iii). COMPETEN~E~FTHECOMMITTEE~FMINISTERS
The Committee of Ministers is competent to exercise the functions assigned

to it by article 32 of the Convention only if two conditions are met:
- the case must have been previously investigated by the Commission and
areport drawn up by the Commission in which, noting the failure of its
attempt to secure a friendly settlement, it gives its opinion concerning
the alleged violation of the Convention;
- the three-month period from the date of transmission of the report of the
Commission to the Committee of Ministers must have elapsed without
the case having been referred to the Court.
In comparison with the Court, the competence of the Committee of Minis-
ters is consequently subsidiary, since the Committee takes a decision only
when the Court does not do so. But to say that the Committee of Ministers is
but a secondary organ of decision may give rise to misunderstandings and
errors of appreciation in regard to the practical importance of the Committee
and the Court respectively.
The Committee of Ministers is undeniably a subsidiary decision-making
organ if this is taken to mean that, chronologically, it falls first to the Court to
deal with a case, since cases can be referred to the Committee only after the
three month period has elapsed. However, the Committee could also be
described as the principal decision-making organ since, as the jurisdiction of
the Court is optional, all cases, which have been the subject of a report by
the Commission, are referred to it.
When it exercises the functions assigned to it by article 32, the Committee
of Ministers has the power to discuss the substance of any case concerning
which the Commission has submitted a report, and it can do so while fully
exercising its powers of decision by examining, for instance, the written or
oral statements of the parties. Thus, the Committee is limited in the exercise
of its competence only by the need to act within the framework of article 32
and by the wish, which it has demonstrated on several occasions, not to lose
sight of its character as a political organ whenever it acts as an organ of
decision of the Convention. This position which it has adopted is not without
effect upon the procedure which it has decided to follow in human rights
cases.
Karel Vasak
(iv). PR~~EEDINGSBEFORETHE~~MMITTEEOFMINISTERS
Article 32 of the Convention contains no provisions regarding proceedings

before the Committee of Ministers. The very most it does is determine at
what time the proceedings are actually instituted: on the expiration of the
period of three months from the date of the transmission of the Commissions
report to the Council of Ministers. It is thus seen that, while the possibility of
proceedings being instituted before the Committee of Ministers is created
when the report is transmitted to it, the proceedings are actually instituted
only after three months, during which the case can be referred to the Court.
This is the only indication as regards procedure which is given in article 32.
It is certain that the rules of procedure so far adopted by the Committee of
Ministers are not sufficient to define the role of the Commission before the
Committee and, even less, to make clear the position of the individual appli-
cant in the proceedings. Since the Committee of Ministers and the Court are
but two organs of the same mode of settlement, there is a temptation simply
to transpose the Rules in force before the Court.
However, the two situations are far from being identical. Despite the fact
that its function determines the nature of the organ, it is no less true that the
nature of the organ affects the exercise of its function. To be sure, the
fundamental reality remains the intervention, as an organ of decision, of the
Committee of Ministers which is the political organ par excellence, since it is
an expression of the sovereign powers of the Member States of the Council of
Europe. It is for this reason that purely and simply transposing the rules in
force before the Court appears hazardous.
The Commission did not make a mistake here when it abstained from
adding to its Rules of Procedure provisions governing its relations with the
Committee of Ministers, although a particular section of its Rules defines its
relations with the Court. No doubt it considered that its role before a political
organ could not be the same, particularly in view of the fact that the Conven-
tion contains no provision relating to any participation by the Commission
before the Committee of Ministers, whereas articles 44 and 48 of the Conven-
tion govern, at least partially, its position before the Court. The Commission
would consequently appear to exceed the limits of the functions assigned to it
by the Convention, if it were to participate in the proceedings before the
Committee of Ministers. Moreover, the Committee of Ministers recognized
this when it expressly abstained, and for the same reason, from including in
its Rules provisions relating to the participation of the delegates of the Com-
mission in the proceedings before it.
Under these circumstances, the Committee of Ministers has only itself to
rely on in reaching the decision required of it by article 32. It is recognized
that, although it must possess all the powers necessary to arrive at a decision
on the report of the Commission, it is nevertheless possible that it will not
wish to take on the task which consists of collecting the grounds of proof, in
the event that this proves necessary. The procedure to be followed will be
determined by an ad hoc decision.
Similarly, the Committee of Ministers has decided not to establish-as the
Commission did by Rule 76 of its Rules of Procedure when a case is brought
before the Court-a procedure whereby the report of the Commission may
be communicated to the individual applicant. It took the view that the report
should be so communicated only in exceptional cases in strict confidence and
with the consent of the State against which the application brought before
the Commission is lodged.
(V). TERMINATION OF THE PROCEEDINGS
Article 32 provides for only one way in which proceedings instituted before
the Committee of Ministers can be terminated: the decision taken by a major-
ity of two-thirds of the representatives entitled to sit on the Committee. If
this two-thirds majority has not been obtained either for a decision of guilty
or not guilty with respect to the State concerned, it has been recognized, at
least in the Huber v. Austria case, that no other measures need to be taken,
the case thus ending in a deadlock in the absence of a genuine decision as to
the substance of the case. It is probable and, at least to be hoped, that the
last word has not been said in this connection.
In addition to settlement by decision, mention should no doubt be made of
friendly settlement which, while not expressly mentioned in article 32, per-
meates the entire Convention. Moreover, was not this solution implicitly
recognized by the Committee of Ministers when it approved the solution
reached in the Cyprus case? By its Resolutions (59) 12 and (59) 32, it in fact
decided, taking account in particular of the agreements of Zurich and London
concerning the settlement of the Cyprus problem, that no further action is
called for, thus terminating the proceedings instituted by Applications 176156
and 299/57 by Greece against the United Kingdom. In the same manner,
Resolution DH(79) 1 also encourages the Parties to undertake intercommunity
negotiations to reach a solution in the case.
The proceedings will normally be terminated by the decision of the Com-
mittee as to whether, in the case before it, there has or has not been a
violation of the Convention. It will be taken by a resolution which, accord-
ing to article 20 of the Statute of the Council of Europe, is the form assumed
by important decisions of the Committee. The Committee of Ministers will
thus have to settle a legal dispute. It will have to do so in full possession of its
powers of decision, and consequently in no way be bound-nor indeed is the
court-by the report of the Commission. A judge is not tied to the person
testifying before him, and this principle remains valid, even if the judicial
functions are exercised by a political organ.
It must be noted that only the Convention can provide the grounds for a
decision by the Committee of Ministers. Moreover, the International Court
of Justice very rightly noted in its advisory opinion of 24 May 1948 concerning
502 Karel Vasak
the conditions of admission of a State to membership in the United Nations

(Charter, art. 4) that the political character of an organ cannot release it
from the observance of the treaty provisions established by the Charter
when they constitute limitations on its power and criteria for its judgement.
The Court stressed that to ascertain whether an organ has freedom of choice
for its decisions, reference must be made to the terms of its constitution. In
the case of the Committee of Ministers, reference must be made to the
Convention, both to its text and to its spirit.
If the Committee of Ministers decides that there has been no violation of
the Convention, the acquittal is final and no remedy is available. If the
decision concludes that there has been a violation of the Convention, the
Committee then determines the time-limits within which the State concerned
must take the measures required by its decision. Does it have to define these
measures in its decision? Article 32 does not so prescribe and it seems to give
the State concerned full liberty to draw itself the necessary consequences
from the decision. It has, however, been recognized that the Committee of
Ministers is empowered, when it has decided that a violation of the Conven-
tion has taken place, to formulate opinions, suggestions or recommendations
to the State concerned, provided that they relate directly to the violation.
Whether they are or are not founded upon the proposals of the Commission,
such opinions, suggestions or recommendations are of course not binding
upon the State concerned.
If, following the decision of the Committee of Ministers, the State has not
taken satisfactory measures, article 32 provides that the Committee then
decides by a majority of two-thirds of the representatives entitled to sit on
the Committee, what effect shall be given to its original decision. What
effect can in fact be given? Article 32 gives no indication, thus allowing the
Committee of Ministers a large measure of discretion as regards the measures
to be taken to sanction the non-compliance of the State which has violated the
Convention. No doubt the Committee, like the Court under article 50 of the
Convention, could afford to the injured party just satisfaction, that is to
say, financial compensation, if municipal law allows only partial reparation to
be made for the consequences of the violation. But it could also initiate the
procedure designed to expel the guilty State from the Council of Europe, in
accordance with article 8 of the Statute of the Council.
Article 32 mentions but one form of sanction: publication of the report of
the Commission. It is still necessary for the Commission to have reached the
same decision as the Committee of Ministers, that is, for it to have concluded
that there has been a violation of the Convention. If such is not the case,
there is obviously nothing to be gained by publishing the report and it is
probable that the Committee of Ministers would not in fact publish it.
Is it possible for the report to be published when the Committee of Minis-
ters, endorsing the opinion of the Commission, decides that there has not
been a violation of the Convention? Article 32 does not prohibit it. It conse-
The Council of Europe
quently falls to the Committee to decide in the light of the circumstances of

each case. Thus, taking into account the wish expressed by the Danish Gov-
ernment, it authorized, in December 1961, the publication of the report of the
Commission in the Nielsen Case, with the exception, however, of the chapter
concerning the attempt to secure a friendly settlement. In subsequent cases,
the same ad hoc procedure has always been followed.
(c). A judicial decision-making organ: the European Court of Human

Rights
(i). GENERAL REMARKS
Like the Commission, the European Court of Human Rights was instituted
by the Convention to ensure that the undertakings resulting from that treaty
be respected. It thus shares with the Commission responsibility for giving
effect to the collective guarantee; however, the power which is the basis and
justification of this responsibility-jurisdictional power-is held at the high-
est level by the Court.
Thegeneral rules concerning its organization, its working, its competence
and procedure are defined, principally, in Section III of the Convention.
However, even more so than in the case of the Commission, rules of proce-
dure were necessary, if not to complete the general rules at least to define
their content. Acting under article 55 of the Convention, which gives the
Court the power to draw up its own rules and determine its own procedure,
the Court adopted its Rules of Court on 18 September 1959 at its third
plenary session. Since then, it has amended them several times.
Although the Convention came into force on 3 September 1953 and the
Commission consequently went into operation, the Court, for its part, was
set up only in 1959. Indeed, under article 56 of the Convention, the first
election of the members of the Court, and therefore its establishment, was to
take place after eight Contracting Parties had recognized its compulsory
jurisdiction. This condition was fulfilled on 3 September 1958, exactly five
years after the Convention entered into force.
Whereas for the promoters of the Convention, the Court was to be the
basis of the edifice, as the discussions proceeded, it became its summit, to
which it was to become increasingly difficult to gain access. Open to everyone
in the first draft of the Convention, it does not now provide for the individual
as a party. Designed to be the cornerstone of the machinery offering the
collective guarantee, it is now but an optional cog in that machinery, the
advantages of which, it is true, are not belittled, but whose disadvantages
regarding the sovereign powers of States are stressed. If it is true that the
human rights controversy relates essentially to the lawfulness of human
rights, the European Court of Human Rights takes us back to the heroic ages
of administrative law when the States responsibility could be challenged
before a tribunal only with that States previous agreement, whereas the
Table 16.2
Cases Brought Before the Committee of Ministers
Serial Title of Subject of Opinion of Date of Summary Refer-
number the case(s) the case the Commission Decision decision of ence
decision or
state of
proceed-
ings
A. Inter-State Cases
1 Greece vi legislative not published Res.(59) 20 April no further Yearb. II,
U.K. measures 12 1959 action p. 187
and adminis- called for
trative prac-
tices of
British
authorities
in Cyprus
2 Greece vi certain not published Res.(59) 14 Dec. no further Yearb. II
U.K. cases of tor- 32 1959 action p. 197
ture or mal- called for
treatment
comparable
to torture
3 Austria vi court pro- no viol. Res(63) 23 Oct. no viol. Yearb. VI,
Italy ceedings of Conv. DH3 1963 of Conv. pp. 797-799
brought
against 6
young
people from
Upper
Adige
4 Denmark legislative viol. of Res.DH 15 April viol. Yearb.
to Norway measures arts.56, (7011 1970 art.5, Greek
7 Sweden and and adminis- 8,9,10,11, 6,8,9, case
Netherlands trative prac- 13,14 Conv. lO,ll, 1969,
tices adop- 13,14, 12, PP.
ted follow- Conv. 511-514
ing coup
detat
8 Cyprus VI machina- not published Res.DH 20 Jan. encour-
to Turkey tions and ml 1979 agement
9 practices to under-
consecutive take nego-
to occupa- tiations
tion
Individual Cases
1 Nielsen vi trim. proc.: no viol. of Res.(Gl) 25 Oct. no viol. Yearb. IV,
Denmark right of de- Conv. 28 1961 of Conv. pp. 591-593
fence
2 Ofner and trim. proc. : no viol. Res(63) 5 April no viol. Yearb. VI,
to Hoptinger right of of Conv. DH 1 1963 of Conv. pp. 709-713
3 v/Austria defence
4 Pataki and trim. proc. : art.29483 Res.(64) 16 Sept. no Yearb. VI,
to Dunshirn right of of Penal Code DH2 1963 action pp. 737-
5 v/Austria defence not in conformity required 739
with Conv. in present
cases (leg-
islative
reform)

decision or
state of
proceed-
inns
B. Individual Cases
6 Glaser, trim. proc.: procedures Res.(64) 5 June no Yearb. VII,
to Steinko, right of followed in DH 1 1964 action pp. 435-
19 Steinhaus- defence these cases required 441
er, Maurer, not in con- in
Pietsch, formity with present
g cases
Q, Eichberger, Conv.
Nemec, (legisla-
Molzer, tive re-
Lettl, form)
Vesezcky,
Cerny,
Schlerizko,
Schostal and
Albrecht
v/Austria
20 Plischke trim. proc.: situation Res(65) 9 April no further Yearb.
v/Austria right of remedied DH 1 1965 action VIII,
defence during proc. required pp. 405-467
before Comm. (legisla-
tive re-
form)
21 Grandrath conscien- no viol. of Res(67) 29 June no viol. Yearb. X,
v/FRG tious objec- Conv. DH 1 1967 of Conv. pp. 695-699
tion
22 Ziedler- treatment no viol. Res.(68) 26 June no viol. Yearb. XI,
Kornmann of of Conv. DH 1 1968 of Conv. pp. 1029-
v/FRG prisoner 1031
23 Koplinger length of no viol. Res.(69) 1 May no viol. Koplinger
v/Austria trim. proc. of Conv. DH 1 1969 of Conv. case,EC,
1969,
pp. 214-215
24 Soltikow length of no viol. Res.DH 19 Feb. no viol. Yearb.
v/FRG proc. of Conv. (71U 1971 of Conv. XIV,
pp. 874-876
25 Jentzch length of no viol. Res.DH 5 May no viol. Yearb.
5 v/FRG prevent. of Conv. UlP 1971 of Conv. XIV, PP.
detention 899-903
26 Scheichel- no viol. Res.DH 12 Nov. no viol. Yearb.
bauer vi of trim. of Conv. (71)3 1971 of Conv. XIV, PP.
Austria proc. 903-907
27 La Haye, measures the system Res.DH 16 Oct. Viol. Yearb.
to De Wilde, relating to established (731 1972 art.504 xv. pp.
30 Nys and vagrancy by the law Conv. but 695-699
Swalens vi of 27 Nov. 1891 following
Belgium is not in con- action
(2nd va- formity with taken, no
grancy Conv. further
case) action
required

decision or
state of
proceed-
ings
B. Ixdiridlta/ Cases
31 Inhabitants language viol. art.2 Add. Res.DH 30 April no Inhabitants
of Fourons laws Prot. combined (74)l 1974 further of Four-
v/Belgium with art.14 action ons case,
Conv. required EC, 1974,
iz pp. 117-118
32 Kamma vi diverting no viol. of art Res. DH 13 March no viol. Kamma
Netherlands of trim. 18 combined (7511 1975 of Conv. case, EC,
proc. with art.5 Conv. 1975, p. 61
33 Huber length of viol. art.611 Res.DH 15 April no Huber
v/Austria trim. proc. Conv. (792 1975 further case, EC,
action 1975, pp.
required 105-106
34 25 appl. refusal of viol. art.3 Res.DH 21 Oct. no viol. Yearb. XX,
to East Afri- right to VW 1977 art.3 and p. 642
58 can Asians enter U.K. 5 nor of
v/U.K. art.5
and 14
59 6 appl. refusal of not published no further
to East Afri- right to action
64 can Asians enter U.K. required
v/U. K.
65 Levy v/FRG length of no viol. Res.DH 10 March no viol. Levy case,
provisional of Conv. WV1 1976 of Conv. EC, PP.
detention 49-50
66 Mtiller vi right to no viol. Res.DH 7 April no viol. Muller
Austria pension of Conv. (W2 1976 of Conv. case, EC,
p.24
67 Hatti v/FRG length of no viol. Res.DH 19 Nov. no viol. Yearb.
trim. proc. of Conv. UWJ 1976 of Conv. XIX
p. 1025;
EC, p. 147;
Dec. +
Rep. VI,
p. 56
68 De Geillu- legislative no viol. Res.DH 17 Feb. no viol. De Geillu-
streerde measures of Conv. (7711 1977 of Conv. streerde
Pers N. V. regarding case, EC,
v/Nether- publications p. 69
lands Yearb. XX
p. 640
69 Brtigge- private life no viol. Res.DH 17 March no viol. Yearb.
mann and (abortion) of Conv. Of91 1978 of Conv. XXI,
Scheuten vi freedom of p. 638
FRG religion
70 Haase vi provisional no viol. Res. DH 18 April no viol. Yearb.
FRG detention of Cow. VW 1978 of Conv. XXI, p. 640
too long
71 Kiss v/U.K. access to viol. art.681 Res.DH 19 April no further Yearb.
the court U8P 1978 action re- XXI, p. 642

decision or
state of
proceed-
ings
72 Krzycki VI unjustified no viol. Res.DH 13 Oct. no viol. Yearb.

FRG detention of Conv. UW 1978 of Conv. XXI, p. 646
73 Hilton vi inhuman viol. art.651 Res.DH 24 April viol. of
U.K. treatment (79)3 1979 Conv.
z
0 in prison
74 Arrowsmith freedom of no viol. ResDH 12 June no viol.
v/U.K. expression of Conv. m4 1979 of Conv.
in a military
camp
75 Wells vi private life no viol. Res. DH 12 June no viol.
U.K. (homo- of Conv. uw 1979 of Conv.
sexual)
76 Zand vi proceeding no viol. Res.DH 12 June no viol.
Austria before La- of Conv. (736 1979 of Conv.
bour Court
77 Eggs vi disciplinary viol. art. Res.DH 19 Oct. modifica-
Switzerland punishment 511 m7 1979 tion of the
during a Swiss Mil-
military itary Pe-
service nal Code
during the
proc.
78 Preikhzas length of no viol. Res.DH 19 Oct. no viol.
v. FRG proceedings of Conv. (79)8 1979 of Conv.
before La-
bour Court
79 Christinet vi re-integra- no viol. Res.DH 29 Nov. no viol.
Switzerland tion in an in- of Conv. mg 1979 of Conv.
ternment
establish-
ment
80 Bonnechaux provisional no viol. Res.DH 27 June no viol.
vi Switzer- detention of Conv. C3O)l 1980 of Conv.
land too long
81 Droogen- lawfulness viol. art.554 Pending be-
broeck vi of detention fore the
Belgium Committee
of Ministers
82 Hinchliff detention
v/U.K. of person of
unsound
mind
83 Hamer vi refusal of
U.K. right to
marry in
prison
84 Campbell corporal
v/U.K. punishment
85 Cosans VI corporal
U.K. punishment

decision or
state of
proceed-
ings
B. Zxdividaal Cases
86 Buchholz proceedings
vlFRG before
Labour
court
87 Caprino lawfulness
v1U.K. of detention
first draft of the Convention transposed the most modern rules governing the
responsibility of the public authorities to the international level.
While it is easy to criticize that part of the Convention which relates to the
Court, it is even easier to justify it: the Convention could not turn a blind eye
to that fundamental reality of international life which is represented by States.
This being so, it was preferable, in the very interests of the protection of
European public order, to give to the Court the usual attributes of an inter-
national judicial organ.
(ii). ORGANIZATIONAND WORKING 0F THE COURT
The Court consists of a number of judges equal to that of the Members of the
Council of Europe. No two judges may be nationals of the same State (Conven-
tion, article 38). Thus, a difference still exists between the membership of the
Commission and that of the Court: whereas the Commission consists of as
many members as there are Contracting Parties, the number of judges of the
Court corresponds to the number of Member States of the Council of Europe;
however, in 1975, and for the first time since the entry into force of the
Convention, there was the same number-eighteen-of members belonging
to the Commission as to the Court since all the Member States of the Council
of Europe were at that time Contracting Parties to the Convention. The
adhesion of Portugal in September 1976 made it necessary for a nineteenth
judge of the Court to be elected. A twentieth judge was elected in 1978
following Spains entry into the Council, and finally the twenty-first judge, a
Canadian representing Liechtenstein, recently completed the ranks of the
Court.
The members of the Court are elected by the Consultative Assembly of the
Council of Europe by a majority of votes cast from a list of persons nominated
by the Member States. Each State must nominate three candidates, of whom
two at least must be its nationals (Convention, art. 39, para. 1). A difficulty
arose at the time of the first election because article 39, paragraph 1, does not
indicate whether, to be elected, a candidate has to obtain an absolute major-
ity of votes or whether a relative majority is sufficient. Two proposals were
placed before the Assembly: the first provided for election by an absolute
majority in the first ballot and a relative majority in the second; the second
provided for a single ballot with a relative majority. After adopting the first
proposal, the Assembly proceeded with the election by secret ballot.
Article 39, paragraph 2, of the Convention stipulates that As far as applica-
ble, the same procedure shall be followed to complete the Court in the event
of the admission of new members of the Council of Europe, and in filling
casual vacancies.
Candidates for the office of judge of the Court must be of high moral
character and must either possess the qualifications required for appoint-
ment to high judicial office or be jurisconsults of recognized competence
(article 39, paragraph 3).
514 Karel Vasak
The judges are elected for nine years. However, four of the judges elected
at the first election held office for three years and the four others for six
years. As in the case of the Commission, the purpose of this provision-the
renewal of one third of the judges-could not be achieved once the period of
office of certain judges began at very different dates. Thus, as for the Com-
mission, the object of Protocol No. 5 to the Convention is also to amend
article 40 of the Convention so as to ensure as far as possible the renewal of
one third of the members of the Court every three years.
The judges may be re-elected. The resignation of a judge constitutes vaca-
tion of office. A judge elected to replace another judge whose term of office
has not expired holds office for the remainder of his predecessors term.
No provision of the Convention stipulates that the judges are independent.
No doubt the view was taken that the independence of judges goes hand in
hand with the exercise of jurisdictional power.
It is to be noted, finally, that, like the members of the Commission, the
judges of the Court enjoy, under article 59 of the Convention, during the
discharge of their functions, the privileges and immunities provided for in
article 40 of the Statute of the Council of Europe and in the agreements made
thereunder. The fourth Additional Protocol to the General Agreement on
Privileges and Immunities of the Council of Europe, signed on 16 December
1961 and entered into force on the same date, contains provisions relating to
the Court which more clearly define the privileges and immunities provided
for in the Statute of the Council of Europe. In general, they are scarcely
different from those granted to the Commission by the second Additional
Protocol to the same General Agreement, which was signed on 15 December
1956 and which came into force on the same day.
The Convention establishes no incompatibility between the office of judge
and certain other functions or professions. In the face of this silence, the
Court did not feel entitled to so provide in its Rules. It merely established
what constitutes an obstacle to the exercise of the functions of judge. Article
4 of the Rules of Court thus provides that: A judge may not exercise his
functions while he is a member of a Government or while he holds a post or
exercises a profession which is likely to affect confidence in his independence.
It is also to be observed that a judge may not take part in the consideration
of any case in which he has a personal interest or in which he has previously
acted either as the agent, advocate or adviser of a Party or of a person having
an interest in the case, or as a member of a tribunal or commission of enquiry
or in any other capacity.
The Court elects its President and Vice-President for a period of three
years. They may be re-elected (Convention, article 41).
The seat of the European Court of Human Rights is at the seat of the
Council of Europe at Strasbourg.
The plenary sessions of the Court are convened by the President and must
be so convened at least once a year (Rules of Court, 16).
The quorum of the plenary Court is eleven elected judges.

The Convention is silent on the question of the public character of the work
of the Court. In its Rules, the Court adopted the traditional principle con-
cerning the public character of court proceedings: hearings are public, unless
the Court in exceptional circumstances decides otherwise (Rule 18). The
judgement of the Court is read at a public hearing (Rule 51, para. 2). Lastly,
the Registrar is responsible for the publication of judgements, decisions and
other documents of the Court (Rule 52) and documents deposited with the
Registrar and not published are in principle accessible to the public as well.
As the Commission and the Committee of Ministers meet in camera, a case
consequently loses its secret character only from the time that it is examined
before the Court.
No provision of the Convention deals with the question of the registry of
the Court: articles 11 and 12 of the Rules of Court stipulate that the Court
elects its Registrar and Deputy Registrar after the President has in this
respect obtained the opinion of the Secretary-General of the Council of Europe.
(iii). JURISDICTION OF THE COURT AND CONDITIONS UNDER WHICH A CASE CAN
BE BROUGHT BEFORE IT
For a case to be brought before the Court, the Court must first of all have
been constituted. Article 56 thus provides that no case can be brought before
the Court before the first election of its members. Now under the same
article 56, this first election could not take place before eight Contracting
Parties had recognized the compulsory jurisdiction of the Court. This condi-
tion was fulfilled on 3 September 1958: the first election of judges thus took
place on 21 January 1959.
No case can be brought directly before the Court. It must first of all have
been brought before the Commission in the form of an application, have been
declared admissible and investigated by the Commission; then the attempt to
reach a friendly settlement must have failed and the Commission must have
drawn up its report stating the failure of the attempt to secure such a settlement.
Lastly, the case must have been referred to the Court within a period of
three months from the date of transmission of the report of the Commission
to the Committee of Ministers.
According to article 45 of the Convention, the jurisdiction of the Court
extends to all cases concerning the interpretation and application of the Con-
vention. Thus, within the limits ratione loci, ratione materiae and ratione
tempo% of the Convention, the Court appears to exercise a general jurisdic-
tion. In actual fact, it has indirect jurisdiction, derived from that of the
Commission in that, to be brought before the Court, a case must, on the one
hand, fall within the framework of the competence of the Commission r&one
loci, rutione materiae, ratione personae and ratione tempo+ and, on the
other, meet the various conditions of admissibility pertaining to State and
individual applications.
516 Karel Vasak
Should it be concluded form this that the Court, in that it does not exercise
direct jurisdiction, consequently forfeits the general jurisdiction that seems,
however, to be reserved for it by article 45 of the Convention? Such is not the
case. The Court retains its task of exercising, within the limits of the Con-
vention, a general jurisdiction in the sense that questions of competence
ratione loci, ratione materiae and ratione temporis, as well as questions of
admissibility, settled by the Commission in its decision on admissibility, may
be brought up again before the Court.
The Court has jurisdiction with respect to any Contracting party that has
declared that it recognizes its jurisdiction as compulsory or that has given its
consent or agreement to a particular case being brought before the Court.
The declaration may be made unconditionally or on condition of reciprocity,
or for an indeterminate period. As of 1 January 1982, eighteen of the twenty-
one Contracting States had recognized the compulsory jurisdiction of the
Court, namely: Austria, Belgium, Cyprus, Denmark, Federal Republic of
Germany, France, Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands,
Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom.
Under article 48 of the Convention, the following may bring a case be-
fore the Court: the Commission or the High Contracting Party concerned
which is that whose national is alleged to be a victim, that which referred
the case to the Commission or that against which the complaint has been
lodged.
Article 44 provides, in addition, that Only the High Contracting Par-
ties and the Commission shall have the right to bring a case before the
Court.
While it is natural for States to be granted the right to bring a case before
the Court, it seems surprising that the same right is granted to the Commis-
sion. Moreover, the situation which presents itself here is one which is fairly
rare in international practice (ie., one in which an international judicial organ-
the Commission-brings a case before another international judicial organ-
the Court). The Commissions right to bring a case before the Court is in fact
the result of a compromise between those who were in favour of, and those
who were against, a Court which would be accessible to the individual. It
clearly results from the aforementioned articles 44 and 48 that the individual
cannot, after the failure of efforts for a friendly settlement, refer a case to the
Court that he has brought before the Commission using the application pro-
cedure. Since, in most cases, the application is brought by an individual
against his own Government, no Contracting Party, with indeed the excep-
tion of that of which the individual is a national, can, under article 48, bring a
case before the Court. The Commissions right to bring a case before the
Court makes it possible, to a certain extent at least, to redress the balance.
Thus, this right is in fact but the logical consequence of the refusal to grant
the individual the right to bring a case before the Court.
(iv). PROCEEDINGS BEFORE THE COURT
Institution of proceedings
A case is brought before the Court either by the Contracting Party con-
cerned by means of an application, or by the Commission by means of a
request (Rule 31). Both the application and the request may contain a certain
amount of information enabling the Court to ascertain whether the conditions
under which a case may be brought before it have been met.
Like an application brought before the Commission, the institution of pro-
ceedings before the Court does not have a suspensive effect. Moreover, even
though no provision of the Convention accords competence to the Commis-
sion or to the Court for ordering interim measures, solutions have been found
in the case of the Court such as in matters concerning the Commission espe-
cially; either within the framework of its Rules or in practice before the
Commission, thanks to the spirit of co-operation of the Contracting States.
The Chamber and the plenary Court

When a case is brought before the Court, the Court is constituted in a
Chamber of seven judges. Such is the principle laid down by article 43 of the
Convention. Whereas before the International Court of Justice judgement by
a Chamber is the exception and under its Statute the Court is not obliged to
be constituted in a Chamber, the European Court of Human Rights is in
principle required to exercise its functions by means of a Chamber.
The Chamber of the Court required to judge a case must be composed of
every judge who has the nationality of the State or States party to the case
together with the President of the Court or failing him the Vice-President. If
the Court does not include an elected judge having the nationality of a Party,
or if the judge called upon to sit in that capacity is unable to sit or withdraws,
the President of the Court invites the agent of the Party concerned to inform
him within thirty days whether his Government wishes to appoint to sit as
judge either another elected judge or an ad hoc judge who must possess the
qualifications required to be a judge of the Court. The names of the other
judges and substitute judges are determined by a drawing of lots affected by
the President from among the elected judges not having the nationality of
any Party concerned (Rule 21).
Article 43, in providing that for the consideration of each case brought
before it the Court shall consist of a Chamber composed of seven judges,
seems at first sight to rule out the plenary Court ever being apprised of a
case. If this were so, the European Court of Human Rights, like the Perma-
nent Court of Arbitration, would, to all intents and purposes, be but a list of
twenty-one judges from which the Chambers would be constituted. There
518 Karel Vasak
would be a danger of differences in interpretation between two Chambers of

a Court incapable of achieving any unity in its case-law.
Rule 48 of the rules of Court, by providing in certain cases for the relin-
quishment of jurisdiction by the Chamber in favour of the plenary Court,
re-establishes the unity of the Court and consequently of its case-law:
Where a case pending before a Chamber raises a serious question affect-
ing the interpretation of the Convention, the Chamber may, at any time,
relinquish jurisdiction in favour of the plenary Court. The relinquishment of
jurisdiction shall be obligatory where the resolution of such a question might
yield a result which is inconsistent with a judgment previously delivered by a
Chamber or by the plenary Court. Reasons need be given for the decision to
relinquish jurisdiction.
The plenary Court, having been seized of the case, may either retain
jurisdiction over the whole case or may, after deciding on the question of
interpretation, order that the case be referred back to the Chamber which
shall, in regard to the remaining part of the case, recover its original jurisdiction.
A regularly constituted Chamber relinquished jurisdiction for the first
time in favour of the plenary Court in the case relating to certain aspects of
the laws on the use of languages in education in Belgium. It did so on 3 May
1966 at the actual request of the respondent Government, on the ground that
the case raised a number of serious questions affecting the interpretation of
the Convention. Other instances of such relinquishment occurred subsequently.
Conduct of the proceedings

Whether a case is referred to it by a Contracting Party or by the Commis-
sion, the Court shall take into consideration the report of the latter. The
Court is neither bound to accept the conclusions of the report nor bound to
accept the facts as they have been established by the Commission. The Court,
however, cannot but attach great importance to the report which is the result
of a long investigation during which the parties have exchanged several
statements of the case and have taken part in several hearings together. In
addition, in drawing up its report, the Commission will have been less re-
moved from the facts of the case than the Court, which will come into contact
with these several years after they have occurred. In the Lawless case, for
instance, the facts which led to an application before the Commission in
September 1957 occurred in July 1957. The case was brought before the
Court, however, only in 1960. In such conditions, the report constitutes the
principal item in the case-file of the Court, although the Court does not
necessarily accept as established the facts of the case in the report drawn up
by the Commission and consequently does not confine itself to finding fault,
where appropriate, with their legal interpretation.
The proceedings before the Court are divided into written proceedings and
oral proceedings.
A preliminary objection must be filed by a party at the latest before the

expiry of the time-limit fixed for the delivery of its first pleading.
When the case is ready for hearing, the President of the Chamber fixes the
date of the opening of the oral proceedings. He directs the hearings. He
prescribes the order in which the agents, advocates or advisers of the parties
and the delegates of the Commission, as well as any other person appointed
by them, shall be called upon to speak (Rule 37). The Chamber may, at the
request of a party or of delegates of the Commission or proprio motu, decide
to hear as a witness or as an expert, or in any other capacity, any person
whose evidence or statements seem likely to assist it in the carrying out of its
task (Rule 38). This provision also enables the Chamber of the plenary Court
to hear the applicant as a witness or in any other capacity (provided that he
assists the delegates of the Commission before the Court) but not as a party.
Role of the Commission

Whether or not it reaches the conclusion in its report that there has been a
breach of the Convention, the Commission may or may not wish to bring the
case before the Court. However, it should be noted that in recent years there
has been a notable increase in the number of cases that the Commission has
presented to the Court. If it decides to refer it to the Court, it is by no means
obliged to justify its decision although, in certain cases, it may consider it
advisable to state its reasons.
The functions of the Commission do not come to an end when the case has
been referred to the Court. In fact, no provision of the Convention expressly
states that it cannot take part in the examination of the case before the Court,
article 48 merely providing that a case may be brought before the Court by
the Commission, inter alia. Actually, it is difficult to imagine the Commis-
sion refraining from taking part when its report is likely to be at the centre
of the discussions. Furthermore, the absence of the Commission would cer-
tainly not facilitate the task of the Court; it would even make it practically
impossible in cases where only one Contracting Party is entitled to appear
before the Court. It is thus already implicit in the ordinary workings of the
machinery of the Convention that the Commission take part in the proceedings.
Even if it brings a case before the Court, the Commission still does not
become a party to the proceedings. The Court recognized this in its Rules,
Rule 1 of which stipulates that the term Parties means those Contracting
Parties which are the Applicant and Respondent Parties.
To understand the role of the Commission, it must not be forgotten that
from the moment that a case has been brought before the Court, the proceed-
ings acquire a judicial character. In other words, as long as a case has not
been brought before it, the Court has strictly no jurisdiction in a case. But
once it has been brought before it, the Court is in possession of its full
jurisdictional power. Should it be deduced from this that the Commission,
which is not a party, is subject to the supervision of the Court, and that the
Karel Vasak
powers available to it derive from the jurisdictional power of the Court?

Such, in substance, was the view upheld by the Irish Government in the
discussions relating to the preliminary objections in the Lawless case.
In rejecting the conclusions of the Irish Government, the Court considered
that it was not competent to take decisions which would delete a rule from
the Commissions Rules of Procedure-a step which would affect all Parties
to the Convention. But the judgement defines above all the position of the
Commission before the Court. The preambular paragraph relating thereto
deserves to be reproduced in its entirety:
Whereas in Article 19, the Convention sets up both the Commission and
the Court to ensure the observance of the engagements taken by the High
Contracting Parties in the Convention and assigns to each of these bodies
specific functions in the safeguarding of human rights; whereas those of the
Commission differ according to the stage reached in the proceedings; whereas,
in the initial stage-governed mainly by Section III of the Convention-the
Commissions chief function is to carry out an independent inquiry, to seek a
friendly settlement and, if need be, to bring the case before the Court: once
this has been done, the Commissions main function is to assist the Court, and
it is associated with the proceedings; however, even at this stage its action is
determined not by a decision of the Court, but directly by the terms of the
Convention.
In its Rules of Procedure the Commission has defined its function as an
assistant of the Court. Rule 56 confirms that the Commission assists the
Court in any case brought before the Court. Although the term employed is
different, the idea is the same.
The Commission does not merely make its case-files accessible to the Court.
It assists the Court through one or more delegates whom it appoints in
plenary session once a case has been brought before the Court. The Rules of
the Court indicate in Rule 29 that the delegates may, if they so desire, have
the assistance of any person of their choice. This provision was incorpo-
rated, in substance, by the Commission in its Rules of Procedure (Rule 56)
which states that that person shall be appointed by the Commission but
without giving any other details concerning the qualifications of any persons
that might be called on to assist the delegates. The very general terms of this
provision make it possible to say, however, that the delegates may be as-
sisted by the applicant himself or by his representative or agent. After creat-
ing something of a stir in the vagrancy case against Belgium, this has now
become common practice.
The role of the delegates will no doubt be fairly limited in the case of a
dispute between two States, either because what is originally involved is an
application brought before the Commission by one State against another
State, or because a State has set before the Court the complaints formulated
in an application by an individual. The delegates will probably do no more
than see to it that the report is not misinterpreted by either party and
answer any questions put to them by the Court concerning the report. Such
an eventuality has never arisen as yet.
Such is not the case when the dispute involves only one party, either
because the application has been brought before the Commission by an indi-
vidual against his own Government, or because a State refrains from setting
forth as its own the complaints formulated by its national against the respon-
dent State. As the Court does not wish to become an Attorney General as
well and as, above all, it has not instituted a procedure of an inquisitorial type
(although in the Belgium linguistic case, it adopted a highly active attitude in
its examination of the different complaints), it has a tendency to have re-
course to the Commission which, by taking an active part in the proceedings,
may redress the balance upset before the Court to the disadvantage of the
individual.
The place of the individual

In listing those who may bring a case before the Court, article 48 of the
Convention makes no mention of the individual. Article 44 seems to go even
further since it stipulates that Only the High Contracting Parties and the
Commission shall have the right to bring a case before the Court. This text,
it is true, permits a less strict interpretation than the French text seules les
hautes parties contractantes et la Commission ont qualite pour se presenter
devant la Cour, since it simply excludes the individual from those who have
the right to bring the case before the Court (de porter laffaire devant la
Cour).
Whatever the case, it is indisputable that before the Court the individual
can never be a party, that he can never appear before the Court, in the
words of the judgement in the Lawless case of 14 November 1960.
Does this mean that the individual is completely excluded from the pro-
ceedings? In its aforementioned judgement, the Court noted that the whole
of the proceedings in the Court, as laid down by the Convention and the
Rules of Court, are upon issues which concern the Applicant. It should not
be forgotten indeed that the individual actually originates the proceedings
since it is he who brings the application before the Commission. He is also the
finishing point of the proceedings since, if the Court decides that there has
been a violation of the Convention and that the municipal law of the respon-
dent Contracting Party allows only partial reparation to be made for the
consequences of the violation, it affords, if necessary, just satisfaction to the
injured party, that is to say, to the individual (Convention, art. 50).
Thus, it is impossible to consider the individual to be alien to the proceed-
ings in which he is directly concerned. The place reserved for him is tied to
his being an applicant before the Commission. It is interesting to note in this
connection that both in the judgement of 14 November 1960 and in the state-
ments made before the Court by the Delegate of the Commission and by the
522 Karel Vasak
counsel of the Irish Government, the individual concerned in the proceed-

ings, G.R. Lawless, is always referred to as the Applicant, and in subse-
quent cases the same term has been used.
The Rules of Court already contain certain provisions which allow the
individual to take part in the proceedings. However, the Court could not go
beyond them without disregarding the express provisions of article 44 of the
Convention. And yet, it is in the interests of the proper administration of
justice that the Court should have knowledge of and, if need be, take into
consideration, the Applicants point of view. Being empowered neither to
appear before the Court nor to formulate conclusions through a representa-
tive of his choice, the individual had to turn to the Commission, called upon to
be not his representative but that of the public interest before the Court.
Moreover, the Commission understood that there was a danger of disequilib-
rium between the State and the applicant being too great if, in fulfilling its
function as an assistant of the Court, it did not give the individual the oppor-
tunity to make his voice heard. It therefore provided in Rule 76 of its Rules of
Procedure (now Rule 61) that it would communicate its report to the appli-
cant who would be at liberty to submit to it his written observations on the
report. But the Commission reserves its decision as to what action, if any,
shall be taken with respect to those observations.
In its judgement of 14 November 1960, the Court refused to find fault with
this provision of the Rules of Procedure of the Commission. It considered
that the Commission is entitled to communicate its report to the applicant,
while prohibiting its publication, whenever such communication seems useful
to it. Furthermore, the Court made it clear that for the purpose of knowing
the individuals point of view, it has at its disposal:
. in the first place, and in any event, the Commissions report, which of
necessity sets out the applicants allegations with regard to the facts and his
legal arguments, even if it does not endorse them; secondly, the written and
oral observations of the Delegates and counsel of the Commission which, as
the defender of the public interest, is entitled of its own accord, even if it does
not share them, to make known the Applicants views to the Court as a means
of throwing light on the points at issue; and thirdly, the Court may also hear
the Applicant in accordance with Rule 38 of the Rules of Court, and as part of
the enquiry, may invite the Commission, ex officio, or authorize the Commis-
sion at its request, to submit the Applicants observations on the Report or
on any specific point arising in the course of the debates.
This judgement, as important as it is, did not make it clear in what form
the applicants considerations should reach the Court, nor by what methods
the Commission should collect them. On these two points the judgement of 7
April 1961, also delivered in the Lawless case, provides important clarifica-
tions, confirmed by subsequent practice in other cases with which the Court
has had to deal.
On the question of form, it results implicitly from the aforementioned
judgement of 7 April 1961 and above all from the interpretation given to it by
the Commission in practice, that the Commission is not and cannot become a
purely passive intermediary between the Court and the applicant. The Com-
mission should not constitute a platform for the applicant allowing him to
recover, at least in part, the status of a party to the proceedings, and conse-
quently his opinions can be presented to the Court only insofar as they are
reflected in the public interest represented by the Commission.
As regards methods, the Commission is entirely free to choose them, pro-
vided that it does not follow that the applicant has any locus standi in
judicio. In fact, the Commission has always sought to keep in contact with
the applicant, by communicating to him the report on which he may submit
written observations, by exchanges of views which the delegates have with
the applicant or his lawyer on the occasion of the oral hearings and, lastly, by
providing the representative of the applicant, if need be, with the opportu-
nity to speak under the supervision of the delegates at the time of the hear-
ings before the Court.
Thus, thanks to the good will of the Commission, the Court has managed
indirectly to provide a place for the individual applicant in the proceedings
before it; this will prevent him from considering the subsequent termination
of the proceedings to be an inter alios actum.
(V). TERMINATION OF THE PROCEEDINGS
Friendly settlement or other arrangement providing a solution ofthe matter

After bringing a case before the Court, the Commission may, neverthe-
less, consider it useful to remain in contact with the two parties with a view
to continuing its efforts to secure a friendly settlement. If it reaches a friendly
settlement on the basis of respect for human rights, it notifies the compe-
tent Chamber of the Court. Although it is not obliged to do so, the Court may
strike the case off the list after ascertaining the views of the delegates of the
Commission. In the case of an arrangement or of another similar circum-
stance the same procedure will be followed to provide a solution to the matter
(Rule 47, para.2). The Court then strikes the case off its list, no doubt by
means of a judgement, as in the De Becker case.
Discontinuance
The case may also be terminated by the applicant party deciding not to
proceed with it. When that party has notified the registrar of the Court of its
intention not to proceed with the case and if the other parties agree to such
discontinuance, the Chamber decides, after having obtained the opinion of
the Commission, whether or not it is appropriate to approve the discontinu-
ance and accordingly to strike the case off its list. In the affirmative, the
Chamber gives a reasoned decision which is communicated to the Committee
of Ministers in order to allow them to supervise, in accordance with Article 54
524 Karel Vasak
of the Convention, the execution of any undertakings which may have been
attached to the discontinuance by order of the Chamber or with its approval.
However, notwithstanding the notice of discontinuance and having regard
to the responsibilities of the Court in pursuance of Article 19 of the Conven-
tion, the Chamber may also decide that it should proceed with the consider-
ation of the case (Rule 47, paragraphs 1 and 2).
Judgement
The proceedings will normally terminate with the judgment which will
decide whether in the case under consideration there has or has not been a
violation of the Convention. The judgement must be accompanied by the
reasons on which it is based. It must contain a number of particulars, furnish-
ing unmistakable proof of the fact that it embodies a jurisdictional act.
The judgement of the Court is transmitted to the Committee of Ministers
which supervises its execution (Convention, article 54).
Can it be said that the judgement, which is compulsory for the State, is
directly enforceable? It does not appear to be. Article 50 of the Convention
leaves it to the Contracting party concerned to draw the necessary conse-
quences from the judgement. The judgement does not in fact directly cancel
any decision that is taken or any measure that is ordered by a judicial author-
ity or any other authority of a Contracting Party, deemed by the Court to be
in conflict with the Convention. It is only when the internal law of the Con-
tracting Party allows only partial reparation to be made for the consequences
of the violation of the Convention that the Court can afford the injured party
just satisfaction, that is to say, damages. In delivering its judgement on the
merits of the case, the Court would be able to grant such damages. But
normally it will reserve the rights of the applicant and will give its opinion in
another judgement, following proceedings instituted on the initiative of the
applicant and in which the Commission will once again have taken part, under
the same conditions, through its delegates.
The judgement of the Court is final (Convention, article 52) and, conse-
quently, no remedy can be provided against it. To say that the judgement of
the Court is final does not mean that a request for interpretation or revision
is not admissible. Indeed, under Rule 53 of the Rules of Court, A Party or
the Commission may request the interpretation of a judgement within a
period of three years following the delivery of that judgement. The request
shall state precisely the point or points in the operative provisions of the
judgement on which interpretation is required. Furthermore, under article
54, A Party or the Commission may, in the event of the discovery of a fact
which might by its nature have a decisive influence and which, when a judge-
ment was delivered, was unknown both to the Court and to that Party or the
Commission, request the Court, within a period of six months after that
Party or the Commission, as the case may be, acquired knowledge of such
fact, to revise that judgement. In both cases, the Court decides by means of
a judgement.
Under article 53 of the Convention, the Contracting Parties undertake to
abide by the decision of the Court in any case to which they are parties.
Thence it results that the authority of res judicata will be relative and not
absolute. Execution of the judgements of the Court is consequently founded
on the undertaking of the Contracting States, a classic solution in interna-
tional law. In the event of a refusal to execute the judgement, the Committee
of Ministers could probably not, in carrying out its function of supervising
such execution, be content with noting the default of a State. It would then
be necessary to take action within the framework of the Statute of the Coun-
cil of Europe against the recalcitrant State by applying the procedure to
suspend and to exclude it from the organization.
(d). An auxiliary organ of the Convention: the Secretary-General of the

Council of Europe
It would have been abnormal for the Secretary-General of the organiza-

tion, within the framework of the Convention, not to have been given a part
in its functioning. In point of fact, the highest official of the Council is re-
quired to take action in a dual capacity: as the representative of the Council
of Europe he exercises administrative functions which are the consequence of
the links between the Convention and the Council; as an organ of the Con-
vention, he is assigned specific functions by article 57, thus sharing with the
other organs of the Convention responsibility for its implementation.
Under the terms of article 57:
On receipt of a request from the Secretary-General of the Council of
Europe any High Contracting Party shall furnish an explanation of the man-
ner in which its internal law ensures the effective implementation of any of
the provisions of the Convention.
Article 57 thus grants to the Secretary-General a right to which corres-
ponds an obligation on the part of the Contracting Parties: the Secretary
may ask the Contracting Parties for an explanation of the manner in which
their internal law ensures the effective implementation of any of the provis-
ions of the Convention; the Contracting Parties have the obligation to furnish
explanations.
This diptych is clear only on the surface and leaves unanswered a whole
series of questions concerning, for instance, the subject of the Secretary-
Generals request, his right to act in all circumstances, on his own initiative
and outside the statutory machinery of the Council of Europe, and, perhaps
especially at what times it would be appropriate to question the explanations
furnished by the Contracting States. Concerning this last point, one thing is
certain: as the texts stand at present, the Secretary-General is not empowered
Table 16.3
Cases Referred to the Court
Serial Title of State Initia- Subject Opinion of Date of Subject Refer-
number the case con- tor of of case Commission judge- of judge- ence
cerned proceed- ment ment or
ings state
before of pro-
court ceed-
ings
A. Inter-State Cases
1 Ireland U.K. Ireland emer- viol. art.5 18 Jan. 78 no viol.
v/U.K. wcy 174; art.5 ECHR
legis- viol. art. viol. of series A
lative 3 Conv. art.3 Vol. 6
measures (inhuman
in treat-
Northern ment but
Ireland not
torture)
B. Individual Cases
1 Lawless Ireland Commis- deten- no viol. 14 Nov. 60 prel. ECHR
case sion tion of Conv. obj. series A
without 7 April 61 role of vol. 1
judge- appli-
ment cant ECHR
in mili- before series A
tary Court Vol. 2
camp MERITS:
1 July 61 no ECHR
viol. series A
of Vol. 3
Conv.
2 De Commis- compat- viol. 27 March 62 Strik- ECHR
Becker sion ibility art. 10 ing off series A
case art. 123 Conv. list Vol.4
series
Penal
Code
with
Conv.
3 case
to rela-
8 ting to
certain
aspects 3 May 66
of the Belgium Commis- laws on Belgian prel. ECHR
laws on sion use of legis- 9 Nov. 67 obj. series A
the use lan- lation MERITS: Vol. 5
of guages does not 23 Aug. 68 viol. ECHR
lan- meet the art. 14 series A
guages require- com- Vol. 6
in ments of bined
educa- the Conv. with
tion in art.2
Belgium Add.
Prot.
9 Wemhoff FRG Commis- length viol. art.
case sion prev. 503 Conv. 27 June 68 MERITS: ECHR
detent.; no viol. no viol. series A
length art.681 of Conv. Vol. 7
trim. of Conv.
proc.

ings state
before of pro-
court ceed-
ings
B. Iudiridml Cases
10 Neumei- Austria Commis- length viol. art. MERITS:
ster case sion and prev. 593 Conv. viol. art. ECHR
Austria detent.; 27 June 68 553 Conv. series A
length viol. art. no viol. Vol. 6
trim. 691 Conv. 7 May 74 art.651
Conv. ECHR
art.58 series A
Conv. Vol. 17
11 steg- Austria Commis- length viol. art. 10 Nov. 69 MERITS: ECHR
muller sion and prev. 5$3 Conv. viol. series A
case Austria detent. art.583 Vol. 10
Conv.
12 Matznet- Austria Commis- length viol. art. 10 Nov. 69 MERITS: ECHR
ter case sion and prev. 593 Conv. no viol. series A
Austria detent.; of Conv. Vol. 9
appeal
against
lawful-
ness of
detent.
13 Delcourt Belgium Commis- role of no viol. 17 Jan. 70 MERITS: ECHR
case sion Public art.611 viol. of series A
Minis- Conv. Conv. Vol. 11
try be-
fore
court of
Cassa-
tion
14 DeWilde, Belgium Belgium mea- viol. art.
to Ooms sures 4,584,8 28 May 70 role of ECHR
16 and Ver- relating Conv. Commis- series A
syp cases to va- 18 Nov. 70 sion Vol. 12
(vagran- ivw 18 June 71 before
cy Court
cases) 10 March 72 MERITS: ECHR
viol. art. series A
554 Conv. Vol. 14
art.50
Conv.
17 Ringei- Austria Commis- length viol. art MERITS: ECHR
sen case sion prev. 503 Conv. 16 Aug. 71 viol. art series A
detent.; 503 Conv. Vol. 13
length 22 June 72 art.50 ECHR
trim. Conv. in- series A
proc. 23 June 72 terpreta- Vol. 15
tion ECHR
Judge- series A
ment Vol. 16
22 June
72

cemed proceed- ment ment or
ings state
before of pro-
court ceed-
ings
B. Individual Cases
18 Golder U.K. U.K. de- viol. art. 21 Nov. 75 MERITS: ECHR
case tainee 661 Conv. viol. art. series A
refused 651, Vol. 18
authori- viol. art. Conv. 8
sation 8 Conv.
to con-
sult
lawyer
19 Natl. Belgium Commis- freedom no viol.
Union sion of asso- art.11 27 Sept. 75 MERITS: ECHR
Belgian ciation Conv. no viol. of series A
Police Conv. Vol. 19
case
20 5 Nether- Commis- military viol. art. 8 June 76 MERITS: ECHR
to Nether- lands sion and disci- 551 and viol art. series A
24 lands Nether- pline 564 591 and Vol. 22
military lands 651
cases
25 Svenska Sweden Commis- freedom no viol. 6 Nov. 76 MERITS: ECHR
Lokman- sion of asso- of Conv. no viol. of series A
nafor- ciation Conv. Vol. 20
bundet
ease
26 Schmidt Sweden Commis- trade no viol. 6 Nov. 76 MERITS: ECHR
and sion union of Conv. no viol. of series A
Dahl- rights Conv. Vol. 21
strbm
case
27 Kjeldsen Den- Commis- law no viol. 7 Dec. 76 MERITS: ECHR
to Busk- mark sion making of Conv. no viol. of series A
29 Madsen sex edu- Conv. Vol. 23
and Ped- cation
bersen compul-
cases sory in
public
schools
I 30 Handy- U.K. Commis- freedom no Viol. 7 Dec. 76 MERITS: ECHR
side sion of ex- of Conv. no viol. of series A
case pression Conv. Vol. 24
E
I - 31 Tyrer U.K. Commis- judi- Viol. 25 April 78 MERITS: ECHR
case sion cial art.3 viol. series A
cor- (degra- art.3 Vol. 26
poral ding Conv.
punish- punish-
ment ment)
32 Konig FRG FRG nature viol. 28 June 78 MERITS: ECHR
and sub- of art.691 viol. series A
sequently admini- art.G$l Vol. 27
the Com- strative
mission agen 10 March 80 art.50 ECHR
ties series A
Vol. 36

ings state
before of pro-
court ceed-
ings
B. Ztfdividual Cases
33 Klass FRG Commis- wire- no viol. 6 Sept. 78 MERITS: ECHR
and sion tapping of Conv. no viol. of series A
others Conv. Vol. 28
34 Lue- FRG FRG the cost viol. 28 Nov. 78 MERITS: ECHR
dicke, and sub- of inter- art.603(e) viol. series A
Belka- sequently preting Conv. art.603 Vol. 29
cem, the Com- criminal
Koc. mission pro- 10 March 80 art.50 ECHR
ceed- series A
ings Vol. 36
35 Times, U.K. Commis- the viol. 26 April 79 MERITS: ECHR
News- sion right art. 10 viol. series A
papers, to Conv. art. 10 Vol. 30
Sunday publish Conv.
Times, infor-
Evans mation
on a
case
pending
before
a court
36 Marckx Belgium Commis- discri- viol. 13 June 79 MERITS: ECHR
sion mina- art.8 viol. series A
tion in and Conv. Vol. 31
inheri- art. 14
tance combined
against with art.8
unmar- Conv.
ried
mothers
and na-
tural
children
37 Winter- Nether- Commis- intern- viol. 24 Oct. 79 MERITS: ECHR
werp lands sion ment in art.554 viol. series A
an Conv. art.54 Vol. 33
asylum
38 Airey Ireland Commis- depriva- viol. 9 Oct. 79 merits: ECHR
case sion tion of art.651 viol art. series A
access 611 and Vol. 32
to the art.8
courts
in de-
termin-
ation of
civil
rights
39 Schiesser Switzer- Commis- provi- no viol. 4 Dec. 79 MERITS: ECHR
case land sion sional art.553 no viol. of series A
Switzer- deten- Conv. Vol. 34
land tion

ings state
before of pro-
Court ceed-
ings
B. IuditGdual Cases
40 Dewer Belgium Commis- discipli- viol. 27 Feb. 80 MERITS: ECHR
case sion nary art.6$1 viol. art. series A
mea- 691 Vol. 35
sures
41 Artico Italy Commis- legal aid viol. 13 May 80 MERITS: ECHR
case sion and law- art.6R3 viol. art. series A
fulness (cl -%3(c) Vol. 37
of de-
tention
42 Guzzardi Italy Commis- unfa- viol. Pending
sion vorable art.5 before
condi- 81 the
tions of court
confine-
ment
43 Van Belgium Belgium refusal viol. Pending
Ooster- and to art.8,12 before
wijck sub- amend the
sequently civil court
the Com- status
mission (trans-
sexual)
44 Le Belgium Commis- disci- Pending
Compte sion and plinary before
Van Leu- Belgium proc. be- the
ven De fore the court
Meyere Council
cases of the
medical
order;
freedom
of assoc.
45 Young U.K. Commis- freedom Pending
and sion of before
James associa- the
case tion court
46 Webster U.K. Commis- freedom
case sion of before -
associa- the
tion court
47 Dudgeon U.K. Commis- private
case sion life before -
(homo- the
sexual) Court
536 Karel Vasak
to apprise the organs of the Convention and in particular, the Commission, of

any facts disclosed by the information he has received. This being so, the
sanction of the right granted to the Secretary-General by article 57 can only
be purely political, within the framework of the Statute of the Council of
Europe (Statute, articles 3 and 8).
Article 57 was put into operation for the first time in October 1964, the
subject of the request by the Secretary-General being all the substantive
provisions of the Convention. It was used for the second time in July 1970 in
connection with article 5, paragraph 5, of the Convention (right to compensa-
tion in the event of arbitrary arrest or detention). The third and last request
to date, made in April 1975, concerned articles 8, 9, 10 and 11 of the Conven-
tion. It is to be noted that the findings of the first two investigations were
communicated to the Consultative Assembly of the Council of Europe which
made a critical evaluation of them in a report which was followed by a resolu-
tion which encouraged the Secretary-General to avail himself of article 57.
The first complete experiences of article 57 will no doubt be considered as
disappointing. The right granted by article 57 to the Secretary-General has
proved to be more a right to information than the authority to call in question
the state of freedom in Europe. Could it have been otherwise? It was undoubt-
edly difficult for the Secretary-General to find a specific place in the appar-
ently complete machinery for the legal protection of human rights instituted
by the European Convention when it established a European Commission
and Court of Human Rights.
At the very most the Secretary-General may have been able, on the basis
of article 57 and by means of the central position which he occupies in the
institutional structure of the Council of Europe, to promote a global concep-
tion of human rights in Europe that went beyond that which emerges from
the Rome Convention. In this connection, there would probably be no obsta-
cle to the Secretary-General, on the occasion of the yearly implementation of
article 57, submitting to European public opinion a report which, in this field,
could become the equivalent of the report on the State of the Union familiar
to several federal States.
2. THE EUROPEAN SOCIAL CHARTER

According to the Special Message of the Committee of Ministers of the Coun-
cil of Europe of 20 May 1954 announcing the beginning of work on a European
Social Charter, the purpose of the latter was to determine the social objec-
tives that Member States will seek to attain, and to guide the action of the
Council of Europe in the social field. The Message also stated that the Char-
ter would be the complement to the European Convention on Human Rights
in that field. It is thus seen that, as regards the question of ensuring interna-
tional protection for economic and social rights, the Council of Europe pre-
ferred to draw up a specific Convention; it would however have been perhaps
possible to extend the protection ensured by the Convention on Human Rights

to economic and social rights by means of additional Protocols.
There existed a precedent for the solution of two separate Conventions at
the United Nations where, as has been seen above, two Covenants on human
rights have been prepared. Moreover, there were several arguments in fa-
vour of such a solution. Thus, whereas civil and political rights are attributes
of the human person, economic and social rights are claims that the individual
can make on society. The first protect mans freedom; the second allow him to
satisfy essential needs: food, housing and health. Thus, the first must be
simply respected by the State which will refrain from interfering in any way
with the exercise of those rights unless the necessities of social life make such
interference unavoidable. It is not enough, however, for the second to be
respected by the State: the State must, if not realixe them, at least take
responsibility for part of their realization. For the first, the State is the
virtual enemy, that which most frequently impairs them. For the second, the
State, instead of being the enemy, becomes the ally, sometimes the only ally.
Legal implementation likewise poses different problems: civil and political
rights lend themselves without too much difficulty to application and judicial
interpretation in the course of which the necessities of personal freedom and
the imperatives of social life are carefully weighed, the balance tilting ini-
tially towards the side of the individual; economic and social rights, while not
being absent in the courts, come before the courts only in the form of claims
against the State and requests for protection addressed to the State.
These are some of the reasons which led the Council of Europe to follow the
example of the United Nations. To these should be added a circumstantial
reason: despite their political homogeneity which made it possible for a Con-
vention for the protection of civil and political rights to be rapidly drawn up,
the Member States of the Council of Europe are not at the same stage of
economic development: in this regard one has only to compare the standard
of living of the Scandinavian countries and the Balkan countries. The former
may have been able to assume the costs resulting from the exercise of eco-
nomic and social rights by everyone; for the latter, most of these rights could
be, at most, objectives of a more or less long term social policy. These
disparities account for the highly distinctive features of the machinery for the
implementation of the rights included in the Social Charter.
It took a particularly long time to draw up the Social Charter, the prepara-
tory work undertaken in 1954 being terminated only in 1961. Very early on
the International Labour Organisation was associated with that work: in
December 1958 a tripartite conference composed according to the principles
of the IL0 was even convened to consider the draft Charter prepared by the
government experts.
The Social Charter was finally signed at Turin on 18 October 1961. It
entered into force only on 26 February 1965. As of 1 January 1982, thirteen of
the twenty-one Member States of the Council of Europe had ratified it:
538 Karel Vasak
Austria, Cyprus, Denmark, Federal Republic of Germany, France, Iceland,

Ireland, Italy, Netherlands, Norway, Spain, Sweden and the United Kingdom.
(a). Rights protected by the Social Charter
The list of protected rights bears witness to the desire of the Member States
of the Council of Europe to show their political unity in the social field while
taking into account their economic disparities.
The Member States reveal their political unity by accepting, as the aim of
a policy which they intend to pursue, by all appropriate means, both national
and international in character, the attainment of conditions in which the
following rights and principles may be effectively realised: right to an
occupation, right to just conditions of work, right to safe and healthy working
conditions, right to fair remuneration, right to freedom of association, right
to bargain collectively, right of children and young persons to protection,
right of employed women to protection, right to vocational guidance, right to
vocational training, right to health protection, right to social security, right
to social and medical assistance, right to benefit from social welfare services,
right of disabled persons to protection; right of the family to social, legal and
economic protection, right of mothers and children to social and economic
protection, right to work in a country other than ones own, right of migrant
workers and their families to protection and assistance.
Under the terms of Part I of the Charter, these rights are first of all the
aims of a policy common to all the Contracting States. At this stage, they
consequently have no binding character in regard to those States or, more
precisely, they are binding on them only as components of an overall policy in
the social field.
However, the Social Charter is not merely a declaration of the principles of
a social policy concerned with the protection of individuals. Part III of the
Charter in fact returns, in 19 articles, to the different above-mentioned rights
in order to give them, this time, a precise legal definition and content and
consequently to define the scope of the undertakings of the Contracting
States in regard to each of them. Among others, the right to an occupation of
article 1 is defined in four paragraphs which constitute so many obligations
for the Contracting States, the right to fair remuneration is defined in five
paragraphs and the right of children and young people to protection in ten
paragraphs.
In becoming Contracting Parties to the Social Charter, the Member States
of the Council of Europe are not consequently and automatically bound by all
the nineteen articles of Part II. A choice is available to them which allows the
degree of their undertaking to be adjusted to their economic and social condi-
tions. After affirming their unity, the Member States thus concern them-
selves with their disparities.
The choice offered, however, is not altogether free since it is exercised

within what has been called the double minimum floating nucleus.
Under article 20 of the Charter indeed, to become a Contracting Party, a
State must undertake:
- to consider itself bound by at least five of seven articles of the Charter
(articles 1, 5, 6, 12, 13, 16 and 19) which contain rights considered to be
essential: right to an occupation, right to freedom of association, right to
bargain collectively, right to social security, right to social and medical
assistance, right of the family to social, legal and economic protection,
right of migrant workers and their families to protection and assistance;
- to consider itself bound by an additional number of articles or numbered
paragraphs, provided that the total number of articles and paragraphs
thus accepted is not less than 10 articles (out of 19) or 45 numbered
paragraphs (out of 68).
Whereas the aim of the inner nucleus (five rights out of seven), regardless
of the combination selected, is to obtain protection for essential economic and
social rights, the outer nucleus (ten rights out of nineteen) constitutes the
beginning of protection for all economic and social rights. Despite its com-
plexity which results in differences between the undertakings of the Con-
tracting States, the system of the Social Charter has the advantage of being
flexible, of being aligned to a reality made up of disparities and differences,
and of leaving the door open to the future since each State is invited progres-
sively to extend its undertakings.
(b). Implementation of the Social Charter
Like the European Convention on Human Rights, the Social Charter pro-
vides a machinery of implementation as a means of supervising the obser-
vance, by Contracting States, of their undertakings. Although it is not as
effective in comparison with that of the Convention, the machinery of the
Charter is just as complex.
(i). ORGAN OF IMPLEMENTATION 0F THE CHARTER
Four organs have a role here, the first two being specific to the Social Char-
ter which provides for their establishment, the two others being statutory
organs of the Council of Europe. Furthermore, as will be seen, both the
International Labour Office and international organizations of employers and
workers have a role to play in the working of the Charter.
The Committee of Experts consists of not more than seven members ap-
pointed by the Committee of Ministers of the Council of Europe from a list of
independent experts of the highest integrity and of recognized competence in
international social questions. Proposed by the Contracting States, they are
appointed for six years, a period sufficiently long for their independence not
Karel Vasak
to suffer from any concern about re-election. The Social Charter provides no
further particulars concerning the appointment procedure or the qualifica-
tions required of the candidates. These questions have been settled by the
Committee of Ministers.
The Governmental Committee of the Social Charter is composed of one
representative of each of the Contracting States; this is an organ which is the
expression of governments: they alone decide on the term of office of the
members of the Sub-Committee, define the positions that they shall adopt,
etc.
The Consultative Assembly, which is one of the statutory organs of the
Council of Europe, is composed of representatives of the Member States,
elected by their parliaments or appointed according to a procedure deter-
mined by them. Although without power in that its competence is purely
consultative, the Assembly is not without influence, insofar as it is a truly
parliamentary organ, representing European public opinion within the peo-
ples of the Member States. In this capacity the part it plays in the working of
the Charter is such as to ensure that its observance is supervised by the
people.
The Committee of Ministers, the organ which is competent to act within
the Council of Europe, does not in fact possess, according to the Statute of
the Council, any more than the power to make recommendations to Member
States. The Social Charter does not modify the nature of its power since, as
will be seen, only recommendatiov~s can be addressed by the Committee to
the Contracting States. But the Charter has facilitated the exercise of that
power and thereby no doubt increased its effectiveness: whereas, according
to the Statute of the Council of Europe, recommendations to Member States
must be unanimously adopted, only a majority of two-thirds is required for
the Committee of Ministers to be able to make recommendations relating to
the Social Charter.
(ii). PROCEDURE FOR THE IMPLEMENTATION ofi- THE soc~4L CHARTER
The implementation procedure appears complex and has proved from experi-
ence to be fairly slow. It is entirely founded upon the reports of the Contract-
ing States and consequently knows nothing of the machinery of State and
individual complaints.
Thus, the Contracting States are obliged to submit to the Secretary-General
of the Council of Europe, every two years, a report relating to the application
of the provisions which they have accepted. Furthermore, the Committee of
Ministers may request the Contracting States to submit, at appropriate
intervals, reports relating to the provisions which they have not accepted.
The system here is one which is clearly inspired by the International Labour
Organisation. Copies of all reports must be sent to national organizations of
employers and trade unions which are members of international organiza-
tions invited to be represented at meetings of the Governmental Committee.
These national organizations may make comments on the reports, which will
be transmitted, if they so request, to the Secretary-General of the Council of
Europe.
The national reports together with any comments forwarded by national
organizations of employers and trade unions are examined by the Committee
of Independent Experts in whose deliberations a representative of the Interna-
tional Labour Organisation may participate in a consultative capacity. Fol-
lowing this examination, which will lead to conclusions being formulated by
the Committee of Experts, the reports and the said conclusions are submit-
ted for examination to the Governmental Committee. That Committee does
not sit alone: it invites no more than two international organizations of em-
ployers and no more than two international trade union organizations to send
observers in a consultative capacity to its meetings. In addition, the Commit-
tee may-it is thus a possibility open to it and not an obligation as before-
consult with no more than two representatives of international non-governmental
organizations having consultative status with the Council of Europe on mat-
ters in which those organizations are particularly qualified. The Govern-
mental Committee, with this assistance, has to draw up, for the Committee
of Ministers, a report containing its conclusions and append the report of the
Committee of Experts. The Committee of Ministers also has before it the
opinion of the Consultative Assembly concerning the report of the Commit-
tee of Experts which is communicated to it at the same time as to the Gov-
ernmental Committee. It is to be noted that, even though the Assembly is
expressly called upon to formulate an opinion only on the report of the Com-
mittee of Experts, and not on that of the Governmental Committee, in actual
fact its opinion bears upon both reports at the same time.
Once in possession of the reports of the Contracting States, the reports of
the Committee of Experts and the Governmental Committee and the views
of the Consultative Assembly, the Committee of Ministers must express its
opinion, that is to say ensure that the observance by the Contracting States
of the provisions of the Social Charter is supervised. The Committee of
Ministers, admirably informed as it is, is not competent to take decisions: it
may merely make to each Contracting Party any necessary recommenda-
tions. The outcome of this highly complex procedure thus appears fairly
disappointing. Nevertheless, two facts point to its importance:
a) the Committee of Ministers may adopt its recommendations not unani-
mously but by a majority of two-thirds of the members entitled to sit on it
(12 votes out of 18);
b) the recommendations are not general, but may be made to each of the
Contracting States; consequently, individual sanction, although only of a
purely moral character, nonetheless exists.
It should be pointed out that the Social Charter does not provide for cases
where a Contracting State takes no account of the recommendations of the
Karel Vasak
Committee of Ministers. Perhaps recourse could then be had to the Statute of

the Council of Europe which provides that a Member State that has seriously
violated human rights and fundamental freedoms may be asked to withdraw
from the Organization.
Six periods of supervision of the application of the European Social Charter
have so far taken place; the seventh, which bears on the period 1981-1982 is
still under way. From one period to another there has been a strengthening
of the role of the ultimate organ of supervision, the Committee of Ministers,
which no longer merely transmits critical reports to the Contracting States
but now also calls the attention of States to the measures required for their
legislation and practice to be in conformity with the obligations resulting
from the Charter. The dialogue between the supervisory organs of the Char-
ter and the governments of the States party to it is essentially founded upon
the conclusions of the Committee of Experts, some of which, moreover, are
challenged by the Governmental Committee. A genuine jurisprudence of
European social law is thus being established, the originators of which are
first of all the Committee of Experts and then the Governmental Committee
of the Social Charter. But, above all, thanks to this regular application,
several tangible measures have been taken, in order to provide better pro-
tection for economic and social rights in practically all of the Contracting
States.
The Social Charter is thus tending to become what its authors wanted it to
be: the complement to the European Convention on Human Rights.
NOTES
1. The provisions concerning them are analyzed above, Chapter 7, supru. Furthermore,
in the tables in the present chapter a list is given of the most important cases, in which the
organs of the Convention have interpreted and applied these provisions.
2. This provision has enabled the Cypriot member of the Commission to continue to hold
office, although his term of office expired long ago. However, as there is no Cypriot delega-
tion in the Assembly, no list of candidates could have been submitted to the Committee of
Ministers.
3. See the Rules adopted by the Committee of Ministers relating to Article 54 of the
European Convention on Human Rights (adopted in February 19X), in Collected Texts.
European Convention on Human Rights, revised 30 January 1976, p. 507.
4. See the Rules adopted by the Committee of Ministers for the application of Article
32 of the Convention, in Collected Texts, European Convention on Human Rights, August
1976, revised 30 January 1978, p. 501.
5. The United Kingdom also recognized the compulsory jurisdiction of the Court for
some of the territories for whose international relations it has responsibility.
6. Such a decision was taken for the first time by the Committee of Ministers in January
1977.
17 American
The Organization of
States (OAS)
Hhctor Gros Espiell
The Charter of the Organization of American States, signed at the 9th Inter-
national Conference of American States (Bogota, May 1948), contains several
provisions relating to the fundamental rights of the human person. It is
stated in the preamble that the historic mission of America is to offer to
man a land of liberty, and a favorable environment for the development of his
personality and the realization of his just aspirations. In accordance with
this mission, several of the principles reaffirmed by the American States
relate to human rights. The latter are proclaimed to be the fundamental
rights of the individual without distinction as to race, nationality, creed or
sex and it is stipulated that the solidarity of the American States and the
high aims which are sought through it require the political organization of
those States on the basis of the effective exercise of representative democ-
racy; it is stated that social justice and social security are bases of lasting
peace and that the education of peoples should be directed towards justice,
freedom and peace, and the duty is imposed on States to respect human
rights. Similarly, articles 28, 29, 30 and 31 (Social and Cultural Standards)
relate to human rights, but deal with the matter in the form of directives
addressed to States which must recognize them and promote respect for
them.
It is acknowledged in the Charter that the question of human rights is not
subject exclusively to the internal jurisdiction of States and the possibility is
envisaged of establishing legal provisions for their international protection.
Despite the conciseness of the text, the Charter does not merely proclaim
the rights of the individual but, in addition, it recognizes the duty of the State
to respect them. Although not specifying the respective competences of its
organs in regard to the protection of human rights-thus marking a step
backwards in relation to the Charter of the United Nations-the Bogota
Charter represented, in America, a step towards the international recogni-
tion of human rights.
The conception of human rights as it emerged from the Charter was an
integral conception, allowing for no form of discrimination, recognizing, along-
544 Hector Gros Espiell
side traditional civil and political rights, economic, social and cultural rights,
and emphasizing that justice is the basis of lasting peace.
Institutionalized in 1948, the OAS marked the culmination of a process that
began in 1889 at the time of the first Inter-American Conference. The Char-
ter was the consecration of an international organization established to
achieve an order of peace and justice. The inter-American system was also
integrated into the universal system of the United Nations as a regional
agency.3
The principles proclaimed at Bogota in the matter of human rights con-
formed to criteria which had been worked out throughout the course of
development of Pan-Americanism. The affirmation, at the international level,
of human rights in the inter-American system was the consequence of the
recognition of the existence of an interdependent democracy in America.4 At
the Conference of Chapultepec in 1945, this idea was developed as follows:
The goal of the State is mans happiness in society. The interests of society
must be harmonized with the rights of the individual. The American man
cannot conceive of living without justice. Nor can he conceive of living with-
out liberty.5 And, the same Resolution, entitled International protection of
human rights, proclaimed the adherence of the American republics to the
principles enshrined in international law for safeguarding the fundamental
rights of man by advocating a system for the international protection of those
rights. The Inter-American Juridical Committee was instructed to prepare a
preliminary draft declaration of rights and the Governing Board of the Pan
American Union was requested to convene a conference of jurists in order to
approve this draft declaration as a convention.
Shortly afterwards, the Uruguayan note of 21 November 1945 initiated a
vast debate on the question. Starting from the idea that it was necessary to
protect human rights at the international level, it envisaged the problem by
proposing that a system of multi-lateral intervention be studied. This was a
mistake for, instead of suggesting the preparation of an international decla-
ration and convention in which the means of protecting human rights would
be established, it chose to propose a method which, on account of its vague
and interventionist character, was inevitably to give rise to relentless opposition.6
The Inter-American Treaty of Reciprocal Assistance (Rio de Janeiro, 1947)
affirmed that peace is founded on the international recognition and protec-
tion of human rights and freedoms, on the indispensable well-being of the
people, and on the effectiveness of democracy for the international realization
of justice and security.7
At Bogota, human rights were to find a place among the fundamental
principles of the system. At the same time, in once again preparing the text
relating to the principle of non-intervention, condemning both individual and
multilateral intervention, the system for the protection of human rights as
suggested in the note of November 1945 was rejected, in view of the fact that
among the cases of collective action-a different concept from that of multi-
The Organization of American States (OAS) 545
lateral intervention-none was envisaged on the grounds of a violation of

human rights8
The principles proclaimed in article 5 of the Charter, far from constituting
simple objectives laid down for the purpose of determining the conduct of the
American States at the international level, are legally binding norms, that is
to say, specific sources of duties for the American States. True, the provis-
ions of paragraph (j) of article 5 constitute norms which, to be fully and
totally applied, need to be developed in other texts in which human rights
would be listed and in which a system would be established by way of a
convention, capable of affording effective protection for those rights; they
nevertheless retain a legally binding character which is undeniable if they are
considered in the light of article 13 of the Charter.
Despite the deep-seated divergencies in respect of the way in which the
protection of human rights should be envisaged and which prevented any
further progress being made in settling this question, marking a step back-
wards in relation to the Chapultepec resolution (which had been in favour of
an international system of protection), it was at Bogota that the American
Declaration of the Rights and Duties of Man was approved (Resolution
XXX). This Declaration, approved some months before the adoption of the
Universal Declaration of Human Rights by the United Nations, proclaimed
in a broad and liberal text, the rights and duties of man. The rights of man
were recognized as being based upon attributes of his human personality,
linked to duties, since the fulfilment of duty by each individual is a prerequi-
site to the rights of all. It was stated that the rights of man are limited by the
rights of others, by the security of all, and by the just demands of the general
welfare and the advancement of democracy. It was declared that the inter-
national protection of the rights of man should be the principal guide of an
evolving American law and that the list of rights established in the Declara-
tion together with the guarantees given by the internal regimes of the states
constitute the initial system of protection considered by the American States
as being suited to the present social and juridical conditions, not without a
recognition on their part that they should increasingly strengthen that sys-
tem in the international field as conditions become more favourable. Reso-
lution XXIX approved the Inter-American Charter of Social Guarantees.
As economic and social rights had not been included in the Declaration, it was
indispensable that a complementary text be established, for it was necessary
to demand that democratic regimes respect political freedoms and the spirit
and application of the postulates of social justice. The Conference of Bogota
requested the Inter-American Juridical Committee to prepare the statutes of
an Inter-American Court for the Protection of Human Rights (Resolution
XxX1). In addition, two Conventions on the civil and political rights of women
were adopted.
The years that followed were not marked by much progress. But this did
not mean that the matter had been abandoned. The 10th Inter-American
Hector Gros Espiell
Conference (Caracas, 1954) adopted Resolution XXVII which reaffirmed,

systematically, all that had so far been achieved and took measures to en-
courage studies in comparative law and to ensure the dissemination of knowl-
edge on this subject. In Resolution XXIX it was decided that the Council of
the Organization would continue to study the jurisdictional aspects of the
international protection of human rights with a view to examining the possi-
bility of setting up an international Court.
At that time, the international situation of the American States was hardly
conducive to a process allowing for much progress in this field. The Inter-
American Juridical Committee observed, in addition, that the absence of
positive law on the subject constituted an obstacle to the application of Resolu-
tion XXX1 of the Bogota Conference. For this reason it recommended that a
Convention be prepared which, using the method adopted by the United
Nations when they decided to prepare the Covenants on Human Rights, was
to provide for the obligation to respect certain rights and establish an inter-
national system for their protection.
At the Meeting of Consultation of Washington (1951) Resolutions VII and
IX were approved concerning the international protection of human rights
and the improvement of economic, social and cultural levels. Several years
were to elapse before the process got under way again, at the 5th Meeting of
Consultation (Santiago, Chile, 1959). American law was ready for the estab-
lishment of an international system for the protection of human rights to be
attempted. It was recognized from that time onwards that this subject was
not solely a matter of the domestic jurisdiction of each State, that interna-
tional regulations were possible and that the machinery of protection to be
established by way of a Convention between the States did not constitute a
violation of the sovereignty of those States.14 To get beyond the stages al-
ready covered since 1948, the same approach had to be adopted as had gov-
erned the preparation of the American Declaration of the Rights and Duties
of Man: a declaration together with a system of implementation solely at the
level of municipal law constituted the initial system of protection to which
an international system had to be joined which would foster the promotion
and protection of human rights as conditions become more favourable.
From the political point of view, the consequence of the repeated violations
of human rights perpetrated by the Trujillo regime in the Dominican Repub-
lic and their external projection in the form of acts of intervention which
endangered peace and security made it favourable for a new stage to be
initiated in the process aimed at ensuring the international protection of
human rights. i5 At the 5th Meeting of Consultation measures were taken
towards the preparation of an American Convention on Human Rights. Seek-
ing to set up a complementary system, the immediate creation of the Inter-
American Commission on Human Rights was decided (Resolution VIII). The
Declaration of Santiago, approved at the same Meeting, also listed in general
terms the basic principles of Resolution VIII.
Before considering the Inter-American Commission on Human Rights and

the American Convention on Human Rights, I shall examine the amend-
ments made by the Protocol of Buenos Aires of 27 February 1967 to the
Bogota Charter in regard to the question of human rights, with the exception
of the two points already indicated, which will be dealt with separately.
Article 5 of the Charter, in which the American States reaffirmed the
fundamental principles of the system, and which became article 3, was not
modified. No change was made in paragraphs d, h, j and 1. Nor was there any
modification of article 13, which became article 16. But if one takes a look at
the passages relating to economic standards (articles 26 and 27), social stan-
dards (articles 28 and 29) and cultural standards (articles 30 and 31) it is seen
that a set of new provisions have been included which proclaim, at the inter-
national level, the economic, social and cultural rights which the State Mem-
bers undertook to respect, guarantee and promote. They thus pledged
themselves to a united effort to ensure social justice in the Hemisphere
(art. 291, devoting themselves to that end to achieving the basic goals listed
in article 31.
Convinced that man can only achieve the full realization of his aspirations
within a just social order (art. 431, they decided to dedicate every effort to
the application of the following principles:
All human beings, without distinction as to race, sex, nationality creed or
social condition, have a right to material well-being and to their spiritual
development, under circumstances of liberty, dignity, equality of opportu-
nity, and economic security;
Work is a right and a social duty, it gives dignity to the one who performs
it, and it should be performed under conditions, including a system of fair
wages, that ensure life, health, and a decent standard of living for the worker
and his family, both during his working years and in his old age, or when any
circumstance deprives him of the possibility of working;
Employers and workers, both rural and urban, have the right to strike,
and recognition of the juridical personality of associations and the protection
of their freedom and independence, all in accordance with applicable laws.
The Member States will exert the greatest efforts, in accordance with their
constitutional processes, to ensure the effective exercise of the right to edu-
cation and to ensure that the benefits of culture are available to the entire
population, on the bases established in articles 47 and 48, among which the
following deserve to be emphasized:
Elementary education, compulsory for children of school age, shall also be
offered to all others who can benefit from it. When provided by the State it
shall be without charge;
Middle-level education shall be extended progressively to as much of the
population as possible, with a view to social improvement.
Higher education shall be available to all. .
Thus the revised Charter of the OAS included a declaration of economic,
social and cultural rights, but not a declaration of civil and political rights
which were listed only in the American Declaration of the Rights and Duties
of Man.
However, since the entry into force, in 1978, of the American Convention,
civil and political rights have been covered by a new instrument which pro-
vides for a specific system of international protection. As for economic, social
and cultural rights which, according to the Pact of San Jose, are defined by
the amended Charter, problems will continue to arise until the Member
States have fulfilled their undertaking to adopt new internal provisions and
to have recourse to international co-operation so as progressively to ensure
that these rights are fully effective. Since the entry into force of the Protocol
of Buenos Aires, the General Assembly has continued to deal with the ques-
tion of human rights, in particular when it has had to consider the reports of
the Inter-American Commission on Human Rights.i7
The conception of the rights of the individual affirmed in the inter-American
system starts off from the idea that man has rights which are inherent in his
own nature, which predate the existence of the State and which are not the
result of juridical attributions. Thus, municipal law and international law do
not create rights but contribute, each in its own sphere, and in a harmonious
manner, to their affirmation and protection. This is a conception which is
directly bound up with democracy as a form assumed by the State and as a
political and philosophical idea.
1. THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

The 5th Meeting of Consultation of Ministers of Foreign Affairs created, by
its Resolution VIII, an Inter-American Commission on Human Rights. This
resolution originated from a feeling that the way had been paved in the
hemisphere for the conclusion of an agreement. Consequently, it was stipu-
lated that a Convention on Human Rights be prepared and, at the same time,
that an Inter-American Commission on Human Rights be set up. The Commis-
sion was thus created by a resolution of a Meeting of Consultation as a
complementary measure, which provided for the preparation of a draft
Convention.
The Commission could not be a new organ of the Organization, for such an
organ could be created only by the Inter-American Conference (art. 33) and
not by a Meeting of Consultation of Ministers of Foreign Affairs (art. 39).
Neither could it be a specialized organization (art.l30), nor an organ of the
Council. The competence of the Commission presented problems since, hav-
ing been created by a simple resolution, the Commission could not be as-
signed the task of promoting respect for human rights in the broad sense; this
would have been tantamount to giving it powers corresponding to those of
the organs for the protection of human rights which were to be created by the
Convention whose preparation had been ordered by Resolution VIII. These
were the reasons for the reservations formulated by the delegation of

Uruguay.
The Council of the Organization approved the Statute of the Commission in
May and June 1960. This first text was immediately modified by the Council
itself, so as to place the problem within the limits of the resolution providing
for the creation of the Commission.lX The Statute defined it as an autono-
mous entity of the Organization of American States, the function of which is
to promote respect for human rights (art.1). It is stipulated that for the
purpose of the Statute human rights are understood to be those set forth in
the American Declaration of the Rights and Duties of Man (art.2). This
provision gave to the American Declaration of 1948 a possibility of application
which had been lacking until then and a specific scope which far exceeded the
modest functions which had been envisaged at BogotB.
After dealing with the membership of the Commission (arts.3~8), the Stat-
ute assigned to it, in article 9, several specific powers for it to be able to carry
out its function of promoting respect for human rights. The Statute dealt at
the same time with matters relating to the Commissions headquarters, meet-
ings, quorum, voting, Secretariat and amendments to the Statute. Once
created, the Commission itself, in pursuance of its Statute, established its
Regulations, which opened the way to a possible expansion of its powers,
particularly with regard to the procedure for considering communications.
The Commission endeavoured, unsuccessfully, to have its Statute amended
so as to broaden its powers, particularly in respect of the examination of
claims or communications. But the Council did not take action on its requests,
despite the recommendation of the 8th Meeting of Consultation.
It was the 2nd Special Inter-American Conference (November 1965) which
decided, by its resolution XXII, originating with the Commission and in
accordance with the opinion of the Secretary-General of the OAS himself,2
to enlarge the sphere of competence of the Inter-American Commission on
Human Rights along the lines mentioned previously. This resolution resulted
in the Statute of the Commission being amended. In addition to certain
amendments made for the purpose of making its working and administrative
organization more effective (art.7A and 14A), article 9A was added to the
Statute, giving the Commission additional functions and powers. What was
involved was no longer merely promoting human rights in the strict sense.
In addition, the Commission was to be given powers in the matter of super-
vision and control, assigning it responsibility for the examination and in-
vestigation of communications and complaints; henceforth, the Commission
could request reports from Governments and submit to the Inter-American
Conference or the Meeting of Consultation an annual report comprising a
general statement and observations on matters covered in communications
concerning which it had to verify whether the internal legal procedures
and remedies of Member States had been duly applied and exhausted. The
Commission thus became a body whose powers were complex and which
related not only to the promotion, but also to the protection, of human
rights.
Resolution XXII, by which the Inter-American Conference approved the
new mandate of the Commission, removed the juridical flaw involved in its
creation but did not completely eliminate the objection according to which a
body invested with powers such as those assigned to the Commission should
be created by a special convention. It was for this reason that several States
abstained from voting, although favourable to the objectives of the interna-
tional protection of human rights. z4 Thanks to these amendments to its Stat-
ute, the Commission was in a position to develop considerably its activities.
The Protocol of Buenos Aires relating to the amendment of the Charter of
the OAS, resulting from a process marked by the 2nd Special Inter-American
Conference, the Special Meeting of Panama and the 3rd Special Inter-American
Conference of Buenos Aires,25 fundamenta 11y modified the Inter-American
Commission on Human Rights, the existence and mandate of which it firmly
established. The Commission became one of the organs through which the
Organization would accomplish its purposes (art. 51, 3). Article 112, which
provides for the existence of the Commission, assigned to it as its principal
function to promote the observance and protection of human rights and to
serve as a consultative organ of the Organization in these matters. To this
was added that an inter-American convention on human rights shall deter-
mine the structure, competence and procedure of this Commission.
Most significantly, however, article 150 provided that, until the entry into
force of the Inter-American Convention the existing Commission shall keep
vigilance over the observance of human rights. This provision made it possi-
ble to assert that the Commissions competence was not limited to promoting
respect for human rights but also involved exercising a role of supervision
and control since the Commission was entrusted with the examination of
communications or complaints. Thus the enlarged powers of the Commission,
decided at Rio de Janeiro in 1965, were regularized by means of a convention.
Resolution VIII of the 5th Meeting of Consultation also established the
composition, method of election, etc. of the Commission. These matters are
also dealt with in the Statute of the Inter-American Commission on Human
Rights adopted by the Ninth Ordinary Session of the General Assembly of
the OAS in La Paz, Bolivia, in October 1979. Under the terms of the Statute,
which took effect in November 1979, the seven members of the Commission
are elected by secret ballot, in their personal capacity, by the Council of the
Organization, from a list on which each Member State may propose three
specialists as candidates. The members of the Commission must be nationals
of the Member States of the Organization; they are elected for their high
moral character and their recognized competence in the field of human rights.
They represent all the Member States of the Organization and act in its
name. They are elected for four years and may be re-elected only once. The
Commission elects its Chairman and two Vice-Chairmen each of whom hold
office for one year and who may be re-elected only once in each four-year
period.
The permanent headquarters of the Commission is in Washington, D.C.,
but it may meet and discharge its duties in the territory of any American
State when it so decides by an absolute majority of votes, and with the
consent, or at the invitation, of the government concerned. As a transitory
provision, the Regulations adopted by the Commission in 1967 shall apply
until it adopts new regulations. However, in any event, a resolution adopted
by the Permanent Council of the OAS in September 1978 provides that the
Commission shall apply its new Statute and Regulations only to those states
that have ratified the American Convention. Thus the pre-1979 arrangements
will continue to apply to those OAS States which are not parties to the
Convention.
The Secretariat services of the Commission are provided by a specialized
functional unit of the General Secretariat of the OAS. The emoluments and
travel expenses of the members of the Commission and the administrative
expenses of the Secretariat are provided for in the budget of the Organization.
In carrying out its assignment of promoting respect for human rights, the
Commission has the following functions and powers: to develop an awareness
of human rights among the peoples of America; to encourage governments to
promulgate progressive measures, within the framework of their domestic
legislation, for the realization of human rights, and to adopt, in accordance
with their constitutional precepts, appropriate measures to ensure the faith-
ful observance of those rights; to prepare studies or reports; to urge the
Governments of the Member States to supply it with information on the
measures adopted by them in the field of human rights; to serve the OAS as
an advisory body in respect of human rights.
Listed in article 9 of its Statute, these powers of the Commission result
directly from its first function-the promotion of respect for human rights.
They did not entail the attribution of any competence to take decisions con-
cerning particular cases of violation of human rights or to examine communica-
tions or complaints relating to individual situations. But, in being assigned
the function of making recommendations to governments for them to adopt
progressive measures in favour of human rights within the framework of
their domestic legislation and, in accordance with their constitutional pre-
cepts, appropriate measures to ensure the faithful observance of those rights,
and in being given the possibility of requesting governments to supply it with
information on the measures adopted by them in the field of human rights, a
path was opened to the Commission which, if circumstances were favourable,
made possible a juristic development such as to bring about an enlargement
of its powers.
The revision of the Statute by Resolution XXII of the 2nd Special Inter-
American Conference, which resulted in article 9 bis, remedied this situation.
It made it possible for the Commissions powers to be enlarged and, in addi-
tion, enabled the problem to be centered not only on the rights declared by
the municipal law of the American States but also on the rights proclaimed in
the American Declaration of the Rights and Duties of Man.27
Thus, from 1965 onwards, the Commission, in addition to its initial powers,
was instructed: To examine communications submitted to it and any other
available information; to address the government of any American State for
information deemed pertinent by the Commission; and to make recommenda-
tions when it deems this appropriate, with the objective of bringing about
more effective observance of fundamental human rights; to submit a report
annually to the Inter-American Conference or to the Meeting of Consultation
of Ministers of Foreign Affairs, which should include: a) a statement of prog-
ress achieved in realization of the goals set forth in the American Declara-
tion; b) a statement of areas in which further steps are needed to give effect
to the human rights set forth in the American Declaration; and c) such obser-
vations as the Commission may deem appropriate on matters covered in the
communications submitted to it and in other information available to the
Commission.
In the exercise of its powers relating to communications submitted to it,
the Commission must first of all verify whether the internal remedies of each
State have been duly applied and exhausted. In examining the communica-
tion, it may apply to any American State to obtain information deemed perti-
nent by it. It may also make recommendations with the objective of bringing
about more effective observance of fundamental human rights.
The Commission must also submit a report annually to the Inter-American
Conference or the Meeting of Consultation of Ministers of Foreign Affairs. In
this report it may call the attention of the supreme organ of the inter-American
system not only to the general situation of human rights in America and the
measures to be adopted for its improvement, but also to particular cases
covered by communications.
By means of its Regulations adopted in 1967, the Commission enlarged the
powers provided for by its Statute, particularly as regards communications
or claims addressed to the Commission. It was not considered enough to
determine the formal conditions to be met by communications (art. 37) and
grounds for inadmissibility (art. 39), but it was also stipulated that communi-
cations must be addressed to the Commission within a reasonable period of
time, in the judgement of the Commission, from the date of occurrence of the
supposed violation (art. 40). Regulations were established concerning the
procedure to be followed: Examination of evidence and observation in loco
were provided for (art. 50), together with a special procedure for denuncia-
tions of the violation of those human rights which, provided for in the Decla-
ration, are listed in Resolution XXII, 2, of the 2nd Special Inter-American
Conference. In this connection, it is stipulated that the occurrence of the
events on which information has been requested will be presumed to be
confirmed if the Government referred to has not supplied such information
within 180 days of the request, provided always, that the invalidity of the
events denounced is not shown by other elements of proof, and on the under-
standing that the Commission may make an extension of the term of 180 days
(art. 51).
In 1979 the General Assembly of the OAS approved the new Statute of the
Commission. The new Statute incorporates important amendments to the
preceding text, which were the outcome of the experience gained in the
course of the Commissions work and the application of its previous Statute
and Regulations, and also takes into account the implications of the entry into
force of the Pact of San Jo& and the need for distinguishing between the
competence of the Commission as an organ of the inter-American system in
respect of all the Member States of the OAS and the competence of the same
Commission as an organ of the Pact of San Jose with reference to States
Parties to it.
The Commission has realized an important achievement, the most out-
standing aspects of which deserve to be emphasized. It has always under-
stood its powers in the broadest sense and in the manner most suited for it to
be able to exercise its functions with the greatest effectiveness. In promoting
respect for human rights in America, it has carried out important work in
developing a system of periodic information submitted by governments on
civil, political, economic, social and cultural rightss in disseminating infor-
mation on problems relating to those rights, either through the preparation
of studies the dissemination of texts, the organization of conferences, or
through the creation of national commissions on human rights, the organiza-
tion of seminars and competitions, the granting of scholarships, etc.
As a technical advisory body of the inter-American system in the field of
human rights, the Commission has each year collected a substantial amount
of information, and has made an extremely important contribution to the
preparation of the American Convention on Human Rights and to that of the
Draft Inter-American Convention on Freedom of Expression, Information
and Investigation. In carrying out its task of obtaining information and in
taking action in particular situations concerning several American States, the
Commission has had to perform the difficult task of analyzing the situation
regarding human rights in each of the Member States.
Lastly, in examining the questions raised by individual communications
and taking decisions in that connection, the Commission has developed an
extremely interesting case-law which has made it possible for the provisions
of its Statute and Regulations to be effectively applied.
The Commission has already examined many thousands of communications.
Thus, for example, during 1978 it opened 1044 separate cases of alleged
human rights violations. In accordance with its Statute (Art. S(bis) c) the
Commissions Annual Report contains observations only on cases which have
been processed and examined during the period covered by the report, and in
which a disregard for human rights has been confirmed and the appropriate
recommendations have been made to the government concerned. Thus the

1978 report contained the Commissions observations relating to 37 cases
involving 5 countries.
In the case-law established by the Commission in examining communica-
tions, two points deserve to be stressed:2
a) the criterion according to which the prior exhaustion of domestic reme-
dies must be taken to mean judicial remedies: the fact that a non-judicial
remedy is pending does not prevent recourse to the Commission;33 and
b) the distinction between particular cases and general cases: in general
cases, the Commission may undertake an examination as to substance with-
out it being necessary for domestic remedies to have been exhausted (art.
9A, para. 4).34
For over twenty years the Commission has accomplished important work.
Its contribution to the promotion of respect for human rights and to the
development of collective awareness of human rights is undeniable. The bulk
of its work has not had any immediate impact on the observance of human
rights in America and this is due to factors of a general nature which hinder
and impede the full application of human rights in that continent. Moreover,
its relentless and sustained action, although it has attracted the attention of
specialists, 35 has not benefited from the support of the information media,
and primarily the press. The peoples of America are still not aware at present
of the work achieved by the Commission or of the possibilities afforded by its
Statute for denouncing violations of human rights on the American continent
and submitting relevant complaints.
Under its pre-1979 Statute the Commission has limited possibilities for
action, particularly in regard to individual cases, in which complementary
action by the OAS General Assembly is required. Moreover, the latter body
was generally content, until recent years, merely to take note of the Com-
missions annual reports without taking any other action. This is no longer
the case, however, as is exemplified by the resolution adopted by the Ninth
Ordinary Session of the OAS General Assembly in October 1979 (OEA/Ser.P,
AG/doc. 1224/79). In its resolution, the General Assembly, inter aZia, declared
that the practice of disappearance is an affront to the conscience of the
hemisphere, and is totally contrary to our common traditional values and to
the declarations and agreements signed by the American States and en-
dorsed the Commissions recommendation for prompt clarification of the
status of persons who have disappeared under circumstances described in the
annual report. In addition to urging or appealing to particular governments
to take action on human rights it required the Commission to continue to
monitor the exercise of human rights in Chile, Paraguay, and Uruguay, and
to report thereon to the next regular session of the General Assembly.
It is also appropriate to mention that, in its 1977 annual report, the Commis-
sion recommended that a convention to make torture an international crime
should be drafted. This was endorsed by the OAS General Assembly in 1978
(res. 368) and the draft subsequently prepared by the Commission was sent
to the Inter-American Juridical Committee in 1980 for comments (OEASer.G,
CPidoc. 1061180).
The verdict on the work accomplished by the Commission is thus, in my
opinion, a distinctly positive one. Its endeavours have been exemplary, par-
ticularly when one takes account of the limits within which it has been able to
act and of the negative political factors which have influenced the OAS Gen-
eral Assembly. Overall the Commission has accomplished considerable work
of great importance for the affirmation and observation of human rights in
America.
2. THE AMERICAN CONVENTION ON HUMAN RIGHTS

Resolution VIII of the 5th Meeting of Consultation of Ministers of Foreign
Affairs (Santiago, Chile, August 1959) recommended that the Inter-American
Council of Jurists prepare a draft Convention on Human Rights together
with a draft Convention on the creation of an Inter-American Court for the
Protection of Human Rights and other suitable bodies to ensure the protec-
tion and observance of those rights.
At its 4th meeting held a few months later the Inter-American Council of
Jurists performed this task and, on the basis of a text submitted by the
delegation of Uruguay, it prepared a draft Convention which covered civil,
political, economic, social and cultural rights and created, as bodies responsi-
ble for ensuring the observance of those rights, an Inter-American Commis-
sion on Human Rights and an Inter-American Court of Human Rights. However,
as the 11th Inter-American Conference which was to examine the draft was
not able to be held, it was not until 1965 that the prepared text was examined
with a view to its being approved.
During this time the Inter-American Commission on Human Rights, also
created at the 5th Meeting of Consultation by virtue of the same Resolution
VIII, had started work and had expressed the wish that it be allowed to
examine the draft Convention prepared by the Inter-American Council of
Jurists.
At the 2nd Special Inter-American Conference, held at Rio de Janeiro
(November 1965), which was instructed to study this question, the Govern-
ments of Chile and Uruguay submitted draft conventions to replace that
prepared in 1959. The question was studied by the 4th Commission of the
Conference. Under Resolution XXIV, the Santiago draft and the Chilean and
Uruguayan drafts were submitted to the Council of the Organization so that
it might, after hearing the Inter-American Commission on Human Rights
and such other bodies and entities as it might deem desirable, make any
amendments that it considered necessary to the original draft.
It was agreed that the draft would be submitted to the Governments to
enable them to formulate observations and propose amendments and that
subsequently the Council of the Organization would convene an Inter-American

Specialized Conference to examine it. The draft was submitted to the Inter-
American Commission on Human Rights which examined it thoroughly and
formulated its opinion in two parts, approved on 21 October 1966 and 10
January 1967. This opinion which went over the amendments proposed by
the Commission was examined by the Council of the OAS. In accordance with
the proposals of its Committee on Juridical-Political Affairs, the Council
made a particular point of consulting governments as to whether the regional
system should co-exist with the universal system, represented by the Cove-
nants opened to signature in 1966 by the United Nations General Assembly.7
After examining the observations received together with other elements on
which to base its judgement, the Commission decided in favour of the possi-
ble co-existence of the two systems.x
Shortly afterwards the Council of the Organization adopted the new re-
vised draft Convention, established by the Commission, as a working docu-
ment intended for the Inter-American Specialized Conference and it transmitted
the draft to the Governments for them to formulate observations and submit
amendments .3g
On receipt of the observations of several States4, the Conference con-
vened the special Conference in San Jose, Costa Rica from 7 to 22 November
1969 which prepared the text of the Convention. Once approved, it was
signed on 22 November 1969 by twelve Latin American States.
The American Convention on Human Rights, the direct sources of which
are the Santiago draft of 1959, the Chilean and Uruguayan drafts and the
draft of the Inter-American Commission on Human Rights, is modeled, by
way of these sources, on the American Declaration of the Rights and Duties
of Man of 1948, the Universal Declaration of Human Rights of 1948, the
Rome Convention of 1950, the case-law and practice of the organs created by
that international instrument, and the United Nations Covenants on Civil
and Political Rights and on Economic, Social and Cultural Rights.41 But it
follows a plan and adopts solutions which are very often specific to it. Al-
though it refers frequently to the aforementioned sources, in numerous in-
stances the Convention adopts formulae modeled on previous texts of the
inter-American system or created in the course of the complex drafting process.
An Inter-American Convention was proposed between 1959 and 1965 when
the adoption of the two Covenants on Human Rights by the United Nations
seemed to be in difficulty. When, in 1966, the process was near completion
and the two Covenants and the additional Protocol to the Covenant on Civil
and Political Rights were opened for signature, the problem again arose as to
whether it was necessary to prepare a regional instrument for the protection
of human rights in the hemisphere, an instrument which, in the future, would
have to co-exist with the universal Covenants, or whether, on the contrary,
the regional draft should be abandoned.
After considering this question and consulting governments, the solution
--._--.-- .._--.-. --...-__-. _-._ . .-_- -.-

was that an American Convention would co-exist with the Covenants. Thus,
two systems of protection provided for by Conventions could one day sup-
plement each other, one regional, the other universal. These two systems
were not intended necessarily to preclude each other and neither of them was
meant to have a priority character: it was to be possible indeed to choose
between the regional approach and the universal approach, taking into ac-
count the differences between the two systems.
The Preamble of the Convention contains certain affirmations which need
to be stressed in order to situate that instrument and identify the ideological
conceptions on which it is founded. The system of personal liberty and social
justice which it is desired to consolidate is conceived of within the frame-
work of democratic institutions and the affirmation, already contained in the
American Declaration, is repeated: that the essential rights of man are not
derived from ones being a national of a certain State, but are based upon
attributes of the human personality, therefore justifying international pro-
tection of human rights complementing that provided by the internal law of
the American States. Thus, the traditional American idea involves a system
for the protection of rights which are inherent in the human personality,
conceived of within the framework of a democratic system; this idea is fun-
damentally different from that serving as a basis for the United Nations
Covenants, prepared with a view to their being applied in a universal system
covering States whose philosophical, political, economic and social principles
are different4
Part I, entitled State obligations and rights protected, consists of a first
chapter which defines those obligations, a second chapter which lists the civil
and political rights protected, a third chapter covering economic, social and
cultural rights, a fourth chapter which deals with the suspension of guaran-
tees, interpretation and application, and a final chapter which deals with the
relationship between the rights and duties of man. Thus a single instrument
covers both civil and political rights and economic, social and cultural rights.4
Part II deals with means of protection. Chapter VI lists the competent
organs, the seventh is on the Inter-American Commission of Human Rights,
the eighth on the Inter-American Court of Human Rights and the ninth on
the provisions common to the two organs. Part III consists of two chapters
which deal with general and transitory provisions.
The first two articles constitute the basis of the Convention. Article 1
provides for the obligation of the States Parties to respect the rights and
freedoms recognized in the Convention and to ensure the free and full exer-
cise of those rights and freedoms without any discrimination. This article
derives from article 2 of the Covenant on Civil and Political Rights and from
articles 1 and 14 of the Rome Convention. But the undertaking to ensure the
equal right of all to the enjoyment of the civil and political rights set forth is
not included in the Convention, as it is in the Covenant (art. 3). In practice,
however, this difference may be considered to be non-existent since the
558 Hkctor Gros Espiell
principle of non-discrimination in the free and full exercise of rights is recog-

nized (art. 1, l), as is equality before the law (art. 14). Under article 2, the
parties undertake, where the exercise of the rights set forth is not already
ensured by domestic legislative provisions, to adopt such legislative or other
measures as may be necessary to give effect to those rights. This provision
has no equivalent either in the Covenant on Civil and Political Rights or in
the Rome Convention.
It is provided that everyone has the right to simple, prompt and effective
recourse for protection against acts that violate his or her fundamental rights
(art. 25, 1). The States undertake to ensure that any person claiming such
remedy shall have his rights determined by the competent authority pro-
vided for by the legal system of State, to develop the possibilities of judicial
remedy and to ensure that the competent authorities shall enforce such rem-
edies when granted (art. 25, 2).
It is specified that the term person, referring to the beneficiary of the
rights and freedoms guaranteed by the Convention, means every human
being (art. 1,2). Intended to guard against any possible problems of interpre-
tation, this provision has no equivalent in the customary sources of the Amer-
ican Convention, although it can be contended that, both in the United Nations
Covenants and in the Rome Convention, the solution is the same, except, in
the latter instrument, in respect of the right to property, which, by virtue of
Additional Protocol No. 1, is ensured for every natural or legal person
(art. 1).
The rights set forth in chapter II are: the right to juridical personality, the
right to life, the right to humane treatment, the prohibition of slavery and
servitude, the right to personal liberty, the right to a fair trial, the principle
of lawfulness and non-retroactivity, the right to compensation, the right to
have ones honour and dignity protected, freedom of conscience and religion,
freedom of thought and expression, the right of correction or reply, the right
of assembly, freedom of association, the right to marry and to raise a family,
the right to a name, the rights of the child, the right to a nationality, the
right to private property, freedom of movement and residence, political
rights, equality before the law and the right to judicial protection (arts.
4-25).
Generally speaking, the Convention itself determines the right which is
covered by direct international protection. But in some cases, it recommends
that specific action be taken in the framework of internal law, either to
prohibit certain types of behaviour, or to adopt a particular norm or to set-
tle a situation in a particular way (for instance, arts. 13, 5; 17, 5 and
21, 3).
The American Convention generally repeats the rights to be found in the
Covenant on Civil and Political Rights and in the Rome Convention. There
are a few differences, however, which deserve to be pointed out. Of these,
mention should be made of the express recognition of the following:
a) the right of everyone to recognition as a person before the law (art.3);

b) the right to life, protected, in general, from the moment of conception
(art. 4, 1)
c) the right of every person to be compensated when he has been sentenced
by a final judgement through a miscarriage of justice (art. 10);
d) the right to have ones honour respected and ones dignity recognized (art.
11, 1);
e) the prohibition of prior censorship (art. 13, 2);
f) the right of correction or reply (art. 14);
g) the same rights granted to children born out of wedlock and those born in
wedlock (art. 17, 5);
h) the right to a name (art. 18);
i) the right to seek and be granted asylum (art. 22, 7);44
j) the right of an alien not to be deported or returned to a country, regardless
of whether or not it is his country of origin, if in that country his right to
life or personal freedom is in danger of being violated because of his race,
nationality, religion, social status or political opinions, and the prohibition
of the collective expulsion of aliens (art. 22, 8 and 9).
Inclusion of the right to property is not wholly justified, for the view could
be taken that the question falls within the competence of the national legisla-
ture.45 As for the rest, in reality, at a time when what is called ideological
pluralism has begun to be affirmed in the inter-American system (and there
exist American States with varying and conflicting ideas in regard to the
right to property), the inclusion of this provision could have created serious
obstacles to the signing and ratification of the Convention by some States. It
would perhaps have been preferable for there to have been a shorter and
more simple list, centred on the protection of a few fundamental rights, for
this might have facilitated the earlier entry into force of the text.
Despite the detailed character of the list of rights set forth, there are a few
omissions. For instance, there is no reference to the right to self-determination,
which may be considered not to be a right of the individual in the strict sense,
but a right which is indispensable to the exercise of all other human rights
(art. 1, International Covenant on Economic, Cultural and Social Rights and
art. 1, International Covenant on Civil and Political Rights); the right of
minorities is not recognized (art. 27, International Covenant on Civil and
Political Rights), an issue which, in Latin America, in the case of indigenous
populations, may be of particular importance.
Article 26 deals with economic, social and cultural rights. It makes do with
stipulating that the States Parties undertake to adopt measures, both inter-
nally and through international co-operation, especially those of an economic
and technical nature, with a view to achieving progressively, by legislation or
other appropriate means, the full realization of the rights implicit in the
economic social, educational, scientific and cultural standards set forth in the
Hector Gros Espiell
Charter of the Organization of American States as amended by the Protocol

of Buenos Aires.
While recognizing the conceptual unity of all human rights, it is obvious
that, on account of their specific characteristics, it is necessary to distinguish
between civil and political rights and economic, social and cultural rights, in
view of the fact that different systems of protection are required for these
two categories of rights. In this connection, the approach adopted in the
Convention was not the most appropriate. * First, because the articles of the
Protocol of Buenos Aires relating to economic, social and cultural rights were
not drafted for the purpose of ensuring protection for those rights, but in
order to establish international co-operation in the economic, social and cul-
tural spheres; on this account, such rights are only partially and incompletely
listed. Second, because the method followed was bound to result in omis-
sions. Thus, for instance, the right to freedom of association is recognized in
the Protocol of Buenos Aires (art. 16) and also in the Convention (art. 43, c).
On the other hand, certain rights which are included traditionally among
economic and cultural rights, but which require a system of protection similar
to that granted to civil and political rights, such as the right to strike (art. 43,
e, of the Protocol of Buenos Aires), freedom of work and freedom of educa-
tion, either are not included in the system of the Convention (such is the case
for freedom of education and work) or do not benefit, as is the case for the
right to strike which is indirectly recognized through the reference in article
26 to the Protocol of Buenos Aires, from a system of international protection
corresponding to their nature.
As for economic, social and cultural rights, the States parties limit their
undertaking to the adoption of internal measures and the establishment of
international co-operation with a view to achieving progressively the full realiza-
tion of those rights within the framework of available resources. Obviously,
what was adopted was a cautious and, to a certain extent, restrictive criterion.47
As regards the international supervision of effective observance of those
rights, it is stipulated solely that the Member States have the duty to submit
to the Commission a copy of each of the reports which they must transmit
annually to the Executive Committees of the Inter-American Economic and
Social Council and the Inter-American Council for Education, Science and
Culture (art. 42). In addition, since the Inter-American Commission on Human
Rights is empowered to request information from governments (art. 41, d) it
is possible to ensure a flow of communications to complement the annual
reports mentioned in article 42.
The list of rights, established in the Convention may be expanded for the
purpose of applying the system of international protection, as is provided in
article 31, in accordance with the procedures established in articles 76 and 77.
These provisions establish the possibility of amendments (art. 76) and addi-
tional protocols with a view to including other rights and freedoms in the
Convention (art. 77).
Chapter IV contains provisions on the suspension of guarantees (art. 27),

the federal clause (art. 28, l), restrictions regarding interpretation (art. 29)
and the scope of restrictions (art. 30).
As regards the suspension of guarantees, a provision which, under differ-
ent titles, has often been used in America to violate human rights, article 27
establishes a specific and clearly restrictive system. It stipulates the sole
cases where such measures can be taken, imposes a time-limit for their
application, provides that such measures must not be inconsistent with other
obligations under international law (paragraph 1) and that they must not be
applied to a series of rights which are specifically identified (paragraph 2).
The federal clause is drafted in such a way that when a federal State is a
party to the Convention, the constituent units of the federation must effec-
tively observe, in the same way as the federal State, the rights set forth in
the Convention (art. 28).
As for the restrictions regarding interpretation provided for in article 29,
the purpose of these provisions is to guard against too restrictive or limita-
tive an interpretation. The four cases dealt with include the prohibition against
any interpretation whose result would be: to restrict the enjoyment of any
right or freedom recognized by virtue of the laws of any State party or by
virtue of another Convention to which that State is a party (paragraph b); to
preclude other rights or guarantees inherent in the human personality or that
are derived from representative democracy as a form of government (para-
graph c); and to exclude or limit the effect that the American Declaration of
the Rights and Duties of Man and other international acts of the same nature
may have (paragraph d).
It is stipulated that the restrictions that, pursuant to the Convention, may
be placed on the enjoyment or exercise of the rights and freedoms set forth
therein may not be applied except in accordance with the laws enacted for
reasons of general interest and solely for the purposes for which those laws
have been provided, which is tantamount to affirming the principle of lawful-
ness while giving to the law alone the possibility of placing restrictions on
fundamental rights. In addition, in recognizing the teleological principle ac-
cording to which restrictive measures must be applied for the purpose of
achieving the goal for which they have been provided, it is made possible to
guard against the misuse of power.4H
It is established that every person has responsibilities to his family, his
community and mankind. The relationship between rights and duties is thus
recognized (art. 32) and, by virtue of a principle whose implications are
obvious for the interpretation of the recognized limits to the enjoyment and
exercise of the rights set forth, it is provided that the rights of each person
are limited by the rights of others, by the security of all, and by the just
demands of the general welfare, in a democratic society (art. 32, 2).
The Convention establishes two organs with competence in matters relat-
ing to the fulfilment of the commitments made by the States parties:
a) the Inter-American Commission on Human Rights; and

b) the Inter-American Court of Human Rights.
In order that the Commission may watch over the promotion of the eco-
nomic, social and cultural rights set forth in the amended Charter of Bogota,
it receives a copy of each report submitted by the States parties to the
Executive Committees of the Inter-American Economic and Social Council
and the Inter-American Council for Education, Science and Culture (art. 42).
The States parties undertake to provide the Commission with such informa-
tion as it may request of them as to the manner in which their domestic law
ensures the effective application of any provisions of the Convention (art. 43).
By virtue of paragraph (f) of article 41, it has the task of taking action on
petitions or communications, and articles 48 to 51 determine the procedure
laid down for this purpose. Petitions or communications containing denuncia-
tions of violations of human rights committed by a State party may be sub-
mitted to the Commission by any person or group of persons or any
non-governmental entity recognized in one or more Member States (art. 44).
The right to individual recourse is thus recognized in that persons or groups
of persons are treated as subjects of international law; this has been de-
scribed as the most significant feature of the new American Convention.4g
What is involved here is a system contrary to the European system which
directly provides any State party with the opportunity to take action against
another State party in the event of a violation of the Rome Convention (art.
24), but which, on the other hand, makes the introduction of a petition by any
person, group of persons or non-governmental organization dependent on the
State concerned having declared that it recognizes the competence of the
Commission to deal with individual petitions (art. 25). The American Con-
vention also differs on this point from the system adopted by the United
Nations. In the Covenant on Civil and Political Rights, in order for a State
party to be able to submit communications to the Human Rights Committee
alleging that another State party is not fulfilling its obligations, the latter
must have made a declaration recognizing the competence of the Committee
to receive and consider communications and the State submitting them must
have made a like declaration in regard to itself (art. 41, 1). As for communica-
tions from individuals regarding violations of civil and political rights, these
became possible only with the entry into force of the Optional Protocol to the
Covenant on Civil and Political Rights, which provides for communications
concerning a State party to the said Protocol from individuals subject to the
jurisdiction of that State party (art. 1).
The American Convention also grants the opportunity to the States par-
ties, if they so declare when they deposit their instruments of ratification or
adherence, or at any later time, to recognize the competence of the Commis-
sion to deal with communications in which a State party alleges that another
State party has violated the rights recognized by the Convention (art. 45).
The Convention establishes the conditions of admissibility of communications
(art. 46), which are generally those provided by international law. The text is
more specific in this regard than that which determines the competence of
the Inter-American Commission under its old (pre-1979) Statute. It includes
paragraph (c) (which has no equivalent in the old Statute), in which it is
stipulated that a petition is inadmissible if it is pending before another inter-
national procedure for settlement. Paragraph 2 of article 46 provides, for its
part, that the provisions of paragaph 1 of the same article shall not be appli-
cable when the domestic legislation of the State concerned does not afford
due process of law for the protection of the right or rights violated, when the
individual has been denied access to the remedies under domestic law or has
been prevented from exhausting them, and when there has been unwar-
ranted delay in rendering a final judgement under the aforementioned reme-
dies. The existence side by side of the Optional Protocol to the United Nations
Covenant on Civil and Political Rights and the Pact of San Jose raises impor-
tant questions with regard to the co-ordination of the two systems, particu-
larly in respect of procedures for individual communications.50
In the course of the procedure, the Commission may request information
from the government of the State responsible for the alleged violation. Such
information must be submitted within a reasonable period, to be determined
in each case by the Commission. If the Commission decides to continue to
consider the case, it proceeds to examine it as it merits; it may undertake a
visit of enquiry and request all pertinent information. It places itself at the
disposal of the parties concerned with a view to reaching a friendly settle-
ment. If such a settlement is reached, it draws up a report which it transmits
to the States concerned, which are not at liberty to publish it. If, within a
period of three months, the matter has not been either settled or referred to
the Court, the Commission may set forth its opinion accompanied by recom-
mendations to the effect that the States should remedy the situation exam-
ined. When the prescribed period has expired, the Commission decides whether
the State has taken adequate measures and whether to publish its report.
This procedure is an extremely complex one.
The Court consists of seven judges of the highest moral, intellectual and
juridical authority, elected in an individual capacity. The members of the
Court cannot be members of the Commission, and vice versa. Ad hoc judges
are provided for and their role defined (art. 55). The judges are elected by the
General Assembly of the Organization. The Convention provides for the
status of the judges, the organization and working of the Court, the quorum,
the place where it has its seat, its secretariat and its Statute and Rules of
Procedure (arts. 58, 59, 60).
The judges of the Court are elected by secret ballot, by an absolute major-
ity of the States parties to the Convention, at the General Assembly of the
Organization, from a list of up to three candidates nominated by each State
party. Such candidates may be nationals of the State nominating them or
nationals of another Member State of the OAS. If three candidates are nomi-
nated, at least one must be a national of a State other than the nominator
(Art. 53). Judges are elected for six years and are eligible for re-election for
one term (Art. 54). The Court is not an organ of the inter-American system,
as the Commission is (Art. 51, paragraph (e) of the Revised OAS Charter),
although the OAS Charter provides for the possibility of its existence with-
out specifically mentioning it (Art. 51, last paragraph, and Art. 112). This
means that it is competent only in the cases provided for in the Pact of San
Jose in respect of American States Parties to that Pact.
The Commission takes part in hearings resulting from all cases brought
before the Court (art. 57). In order for the Court to hear a case, it must make
sure that the procedures before the Commission have been completed (art.61,
2). Only the States parties to the Convention and the Commission have the
right to submit a case to the Court (art. 61, 1). But as private persons or
groups of persons may submit their complaints to the Commission, private
individuals may therefore submit a case to the C0~i-t~~by this indirect means.
In the same way, a State may appear before the Court with regard to a
matter previously examined by the Commission, by virtue of a request made
by a State in accordance with article 45.
The competence of the Court as a decision-making body is left to the
express choice of the States parties (art. 62). For the latter, it does not result
from mere ratification of the Convention, but from a declaration which may
be made at any time, unconditionally, on the condition of reciprocity, for a
specified period, or for specific cases.= On the other hand, its competence as
a consultative body (art. 64) regarding the Convention or any other treaty
concerning the protection of human rights in the American States results
directly from the Convention.5
When the Court, in the exercise of its functions pursuant to article 62, finds
that there has been a violation of a right or freedom protected by the Conven-
tion, it rules that the injured party be ensured the enjoyment of the right or
freedom violated and, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied
and that fair compensation be paid to the injured party (art. 63).
It is worth emphasizing that in cases of extreme gravity or urgency, and
when necessary to avoid irreparable damage to persons, the Court may adopt
such provisional measures as it deems pertinent. With respect to a case not
yet submitted to the Court, it may adopt such measures at the request of the
Commission (art. 63, 2).54
The States parties undertake to comply with the judgement of the Court in
any case to which they are parties; in addition, provisions are included con-
cerning the execution in the country concerned of that part of a judgement
that stipulates compensatory damages to the injured party (art. 68).
When the Pact of San Jose came into force, the Court, following a recom-
mendation of the General Assembly of the OAS (Resolution 372), established
itself in the capital of Costa Rica, in September 1978, and its judges were
then elected in accordance with the procedure laid down in Article 81 and 82
of the Pact.5 So far, the Court has not delivered any judgements or advisory
opinions. The Courts Statute was adopted by the General Assembly of the
OAS at its meeting in La Paz, Bolivia, in 1979.
The Convention also contains provisions relating to reservations5 amend-
ments and denunciation.
It is open for signature and ratification by or adherence of any Member
State of the OAS (art. 74, 1). In contradistinction with other international
instruments, the period during which it remains open for signature is not
stipulated, nor is there any indication as to when the process of adherence
whereby a State may become a contracting party starts.
It entered into force as soon as eleven States had deposited their instru-
ments of ratification or adherence (art. 74, 1).7 This is a very large number if
one takes into account what has already been said concerning the list of
protected rights, if it is known that nineteen States took part in the Confer-
ence and that only twelve signed the Convention (El Salvador, Colombia,
Ecuador, Honduras, Paraguay, Panama, Chile, Uruguay, Guatemala, Nica-
ragua, Venezuela and Costa Rica), if one bears in mind the declarations made
in the Final Act by Argentina and Mexico.s
It was signed on 22 November 1969 by twelve States. One of them signed
with reservations.5Y It was subsequently signed by various other States,
including the United States of America, which, under the Carter administra-
tion, signed the Convention, departing from its traditional policy.6o How-
ever, as of January 1982, the United States, along with Chile, Paraguay and
Uruguay all of whom have signed, had not ratified the Pact of San Jose.
It has been ratified by seventeen American States to date. On 18 July 1978,
having been ratified by eleven States, it came into force for those States
(Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Grenada,
Guatemala, Haiti, Honduras, Panama and Venezuela). Since that time the
Convention, as of January 1982, has also been ratified by Peru, Nicaragua,
Bolivia, Jamaica, Mexico and Barbados.
It should be mentioned that some of the most populous American States
either have not signed the Convention or have not ratified it (Mexico, Brazil
and Argentina). Although it is not inconceivable that further progress will
shortly be made, especially perhaps in the case of the United States, Mexico
or Brazil, the question is not easy, and the Pact will continue for an indefinite
period to be a regional instrument only partially in force and covering only
part of the American continent.
Under these circumstances, the limited hopes of any progress being
achieved by the system for the international promotion and protection of
human rights in America must be placed principally in the work of the present
Inter-American Commission on Human Rights which, it is to be hoped will
continue its positive action while increasing its prestige and affirming its
competence.
3. THE INTER-AMERICAN COMMISSION ON WOMEN

International law has given particular attention to the status of women with a
view to encouraging the elimination of all discrimination founded on sex. In
1923, at the 5th Inter-American Conference, it was recommended that future
Conferences study the means of abolishing the constitutional and legal inca-
pacities of women, for the purpose of securing, in due course and by means of
the development of adequate capacities, the consequent responsibilities and
the same civil and political rights for women that are today enjoyed by men.
The question was raised again at the 6th Conference (Havana, 1928). At
Montevideo, at the 7th Conference, the Convention on the Nationality of
Women was adopted, which forbids any distinction based on sex in the
legislation or in the practice respecting nationality of the signatory States.
At the 8th Conference in Lima (1938), resolution XX was approved, which
provides for equal political treatment for women and men, equality as to civil
status and larger possibilities of protection for women in work and as mothers.
In 1948, the 9th Inter-American Conference adopted two Conventions: one
on political rights and the other on civil rights of women.
The Inter-American Commission of Women (CIM) was set up in 1928; it
was instructed to take charge of the preparation of juridical information and
data of any other kind which may be deemed advisable to enable the Seventh
International Conference of American States to take up consideration of the
civil and political equality of women in the continent. It carried out the task
entrusted to it and, at the 9th Conference, in 1948, was established on a
permanent basis and was invited to work for the extension of civil, political,
economic and social rights to the women of America; to study their problems
and propose means of solving them. .
The 10th Inter-American Conference (Caracas, 1954) modified the Statute
of the Commission which had been adopted at the 9th Conference and incor-
porated the Commission in the inter-American system on a permanent basis.
Its secretariat was to be attached to the General Secretariat of the OAS. The
Agreement concluded by the Commission, as a specialized organization, with
the Council of the OAS was signed on 16 June 1953. The seat of the Commis-
sion is the same as that of the Pan-American Union.
The Commission is composed of one delegate for each of the American
States, appointed by the respective Government. It has an Executive Com-
mittee which is composed of the Chairman and the representatives of six
countries elected for a period of two years.
There are also National Committees for Co-operation responsible for col-
laborating with the Titular Delegate in each country in the promotion of the
Commissions aims and purposes. The Permanent Secretariat functions in the
offices of the General Secretariat of the OAS.
In 1976, the CIM adopted a Regional Plan of Action for the Decade of
Women in the Americas which emphasized six priority areas for action: (1)
.-_---.-- __.--.-- --~

-_II._ .-...- ~ ,I__-.I.-I -..
integration of women into the rural economy; (2) participation of women in

industrial urban development; (3) training of women for business activities
within their traditional spheres of action; (4) legal equality of the sexes; (5)
participation of women in development; and (6) projection of the image of
modern woman in accordance with her full potential.
At the 19th Assembly of Delegates in Washington, in 1978, the CIM adopted
a wide range of resolutions dealing with, inter alia: the full integration of
women into the process of agrarian reform; updating of current adoption laws
and codes; the protection of women in prison; a study of the legal status of
women; and the employment of women in the OAS.
In 1977, a Multinational Womens Center was established in Cordoba,
Argentina under the auspices of the CIM, the Government of Argentina and
the National University of Cordoba. Its stated objectives are: (1) to research
the realities of women in the Americas, and to train them, no matter what
their age, marital status or social position, to participate effectively and on an
ongoing basis in the process of the integral development of the countries of
the hemisphere; (2) to support the research, training, documentation and
information programs of the Commission.
At its Annual and Special Assemblies, held in turn in the different Member
States, and on the occasion of its seminars, courses and various activities, the
Commission has performed work which merits the highest praise. It has
achieved success in many fields relating to the economic, social, cultural and
political advancement of women. With regard to the political aspect, it should
be mentioned that in 1928, when the Commission was established, only one
American country recognized the right of women to vote. Today it is recog-
nized by 26 States.
4. THE INTER-AMERICAN CHILDRENS INSTITUTE

The Institute was created in 1927 under the name of the American Interna-
tional Institute for the Protection of Children, by virtue of a resolution
approved by the 4th Child Congress (Santiago de Chile, 1924). The agree-
ment between the Institute and the OAS was signed in 1949 and modified in
1962. The Institute is a specialized organization, enjoying technical auton-
omy, but is financially supported by the OAS; its secretariat is attached to
the General Secretariat of the Organization. Its present Statute, modified in
1963 to be incorporated in the Agreement of 1962, assigns to it the task of
promoting the study of the problems of motherhood, childhood, adolescence
and the family in America and the adoption of such measures as may afford a
solution to these problems.
The institute performs the task assigned to it through its Directing Coun-
cil, the Pan-American Child Congress, which meets every four years, and its
Bureau. The Director and the personnel of the Institute are appointed by the
Secretary-General of the OAS. Its headquarters are in Montevideo. It has
568 H&tor Gros Espiell
played a significant role in respect of the recognition and promotion of the

rights of the child and the family, in particular through studies and proposals
made with a view to modernizing and co-ordinating the relevant American
laws.4
Conclusions
The first observation to be made about the inter-American system of human
rights is the same as that suggested by consideration of Pan-Americanism. It
stems from the fact that the system has two essentially different facets. On
the one hand, the United States of America, an economic and social super-
power, representing a political reality founded on the uninterrupted conti-
nuity of its constitutional system since Independence (which is reflected in
the formal observance and the more or less effective legal protection of
human rights) and, on the other hand, Latin America, divided and underde-
veloped, politically unstable and presenting a political reality that tends, in
general, but with exceptions, to deny the rights of the individual.
Even though the theoretical conception of human rights, the philosophical
ideas on which they are founded, the role of the state and that of the interna-
tional community in respect of those rights may be similar in the United
States and in Latin America insofar as both share the same western outlook,
in actual fact what is involved is two worlds; it is consequently extremely
difficult to establish a joint system for the protection of human rights. It is
also to be noted that the Inter-American Commission on Human Rights has
so far, except in isolated cases, concerned itself almost exclusively with human
rights in Latin America.
The second observation stems from the fact that during the last forty
years, international law in the Americas has made progress at the normative
level in proclaiming, promoting and protecting internationally the rights of
the human person.
The Charter of BogotB, the American Declaration of the Rights and duties
of Man, the Inter-American Charter of Social Guarantees, the Inter-American
Commission on Human Rights, the Protocol of Buenos Aires and the Pact of
San Jo& have marked the most decisive stages in this process. But actual
conditions have not kept abreast of these developments. While the system has
advanced in theory, practical conditions in America in respect of human rights
have made small progress. In Latin America, in the course of the last forty
years, there has been a certain economic progress; it might also be said that
public opinion is better informed and more critical, that there has been a rise
in the standard of living and that the peoples of Latin America today rightly
and irrefutably aspire to a situation in which their rights may be recognized
and guaranteed. However, except in a few cases, human rights in Latin Amer-
ica today do not seem to be more respected than they were in 1948. Indeed, on
the contrary, it is easy to find cases where there has been an obvious regression.
The Organization of American States (OAS)
Things being what they are, one is obliged to note the sad fact that the
force of those economic and political factors which have impeded progress
and which have even led to a regression, has been greater and more decisive
than the force which might have resulted from normative progress. How-
ever, one cannot on that account be absolutely pessimistic in the face of what
has been achieved. The inter-American system for the promotion and protec-
tion of human rights could not, in itself, cause the defacto situation to change
nor make practical conditions in the Americas develop along different lines.
But what has been achieved has not been in vain. Without the progress
accomplished by international law, the situation would be even more nega-
tive, for it cannot be denied that the juridical superstructure has an influence
on the economic and social infrastructure and, in addition, that it has an
impact at the level of the training of mens minds, reflected in an awareness
which is of the utmost importance today. Normative progress has thus helped
to produce and to advance an enlightened Latin American conscience, which
demands with ever-increasing force that human rights be observed and re-
spected. As a result, and on account also of the fact that Latin America has
developed economically and has started to recover its natural resources, to
affirm its international personality and to raise the standard of living of its
peoples, the question of human rights is no longer simply a matter of juridical
and academic rhetoric but is becoming a tangible feature of the real world.
The process of seeking to ensure respect for human rights cannot but
continue. And as it does so, and as material conditions progressively im-
prove, the international system for the protection of human rights and for the
supervision of the observance of those rights in America has a positive part to
play.
NOTES
1. Preamble, paragraph 1.
2. Article 5, paragraphs j, d, h, 1 and Article 13.
3. Charter of the OAS, Article A. Charter of the United Nations, Arts. 52-54.
4. International Conference of American States for the Maintenance of Peace, Buenos
Aires, 1936; VIIIth International Conference of American States, Lima, 1938, resolutions
XXVII, XXVIII, XXXVI and LXXII; Meeting of Consultation of Panama, 1939, resolution
VII; Meeting of Consultation of Rio de Janeiro, 1942, resolution XVII. Reference may be
made to other more remote antecedents, with the Convention on Asylum of 1928, a few
decisions of the Conference of Montevideo of 1933 and a precedent from 1902 (Robert K.
Goldman, The Protection of Human Rights in the Am,er-icas: Past, Present and Future,
New York University, Center for International Studies, Vol. 5, No. 5, 1972, pp. 2-3); J.A.
Cabranes, The protection of human rights by the Organization of American States, AJIL,
Vol. 62, 1968, p. 891 note 9.
5. Resolution XL.
6. Paralelismo entre la democracia y la paz, Proteccidn international de 10s derechos de1
hombre; acci6n colectiva en defensa de esos principios, Ministry of Foreign Affairs, Monte-
video, 1946; Diego Uribe Vargas, Los derechos humanos y el sistema interamericano,
Madrid, 1972, pp. 281-301;Albert0 Ulloa, La propuesta Rodriguez Lameta, Rewista Peruanu
de Derecho Znternacional, 1945; Ramon Lopez Jimenez, El principio de no intervention en

America y la nota uruguaya, Buenos Aires, 1947. It has been rightly noted that, owing to
the profound historical roots of the principle of non-intervention in America, international
protection has encountered great difficulties, and a long and difficult process was necessary
for a system of international protection to be established (J.A. Cabranes, op. cit., p. 889).
7. Preamble.
8. Antonio Gomez Robledo, Idea y experiencia de America, Mexico, 1958, p. 233; Inter-
American Juridical Committee, Diferencia entre Intervention y Action colectiva, CZJ-8,
Washington, 1965.
9. Dardo Regules, La lucha por la Justicia y por el Derecho, Montevideo, 1949, pp.
18-31, 97-108. This criterion was upheld at some of the Inter-American meetings, as for
instance by Uruguay, particularly between 1936and 1966, but was not adopted. Concerning
the interpretation of article 5, the position of the Inter-American Juridical Committee has
not been as precise and clear as might be desired. See Jose Joaquin Caicedo Castillo, El
Panamericanismo, Buenos Aires, pp. 364-365.
10. Karel Vasak, La Commission interamericaine des droits de lhomme, Paris, 1968, p.
26; Dardo Regules, La lucha por la justicia y par el Derecho, Montevideo, 1949, pp. 97-108.
11. The Organization of American States and Human Rights, Washington, 1972, p. 560;
German Fernandez de1 Castillo, La Declaration Americana de Derechos y Deberes de1
Hombre,MBzico en la IX Conferencia Zntemacional Americana, Mexico, 1948,pp. 133-164.
Carlos Garcia Bauer, Los derechos humanos, preocupacion universal, Guatemala, 1966, pp.
111-112.
12. The Organization of American States and Human Rights, Washington, 1972 p. 572;
Mario de la Cueva, La Carta International Americana de Garantias Sociales,Mdrico en la
IX Conferencia Znternacional Americana, Mexico, 1948, pp. 185-196;Francisco de Ferrari,
Carta international Americana de Garantias Sociales, concordada con las disposiciones
constitucionales, legales y reglamentarias vigentes en el Uruguay, Derecho Laboral,
Montevideo, 1948, V.I., p. 186.
13. The Inter-American Juridical Committee had been requested to prepare the Ameri-
can Declaration of the Rights and Duties of Man and the Inter-American Charter of Social
Guarantees by the Conference of Chapultepec (Resolution XL and LVIII). This task was
only partly carried out by the Committee and had to be completed by a Commission of the
Inter-American Conference.
14. Simposio sobre el proyecto de Convention de Derechos Humanos de Santiago de
Chile, Faculty of Law and Social Sciences, Montevideo, 1959, pp. 19-24.
15. J. A. Cabranes, Human Rights and Non-Intervention in the Inter-American Sys-
tem, Michigan Law Review, 1967, p. 1147; Robert K. Goldman, The Protection of Human
Rights in the Americas: Past, Present and Future, New York University, Center for
International Studies, Vol. 5, No. 2, 1972, p. 8.
16. Declaration of Santiago, Preamble, paragraph 4, and Declarations Nos. 4, 5, 6 and 7.
See Resolutions III, IV, paragraphs 1 and 2; VIII and X.
17. Res. 53 of the 1st ordinary session of the General Assembly, Promotion of the
observance of human rights in the American States, 231411971.
18. Statute of the Inter-American Commission on Human Rights, approved by the Coun-
cil of the Organization on 25 May and 8 June 1960, OASiSer. LNi11.26. This version includes
the amendments introduced by resolution XXII of the 2nd Special Inter-American Confer-
ence and those approved by the Council on 24 April 1968. The Organization of American
States and Human Rights, Washington, 1972, p. 600. On the occasion of the entry into force
of the Protocol of Buenos Aires, it was possible to amend the Statute of the Commission
(XXIIIrd Report, OASSer. L/V/11.23, p. 44; XXIVth Report, OAS/Ser. L/V/11.24, pp.
40-43); it was finally decided not to do so (XXVIth Report, OAS/Ser. L/V/11.26, pp. 44.46).
19. German Fernandez de1 Castillo, La Declaration Americana de Derechos y Deberes
de1 Hombre, Mdzico en la IX Conferencia Znternacional Americana, 1946, pp. 161-163.
20. OASlSer. L/V/11.17; The Organization of American States and Human Rights, Wash-
ington, 1972, p. 610.
21. Karel Vasak, La Commission interamkicaine des droits de lhomme, Paris, 1968,
paragraph 114, p. 53.
22. Reports on the lst, 3rd, 4th, 5th and 6th sessions. Karel Vasak, op. cit., paragraphs
115-116, pp. 55-56.
23. Jose A. Mora, Fortalecimiento de Sistema Interamericano, 21 October 1964,341-S-7009.
24. Karel Vasak, op. cit., p. 140, note 3.
25. Karel Vasak, op. cit., paragraphs 96-98, pp. 44-45.
26. See Thomas Buergenthal, The revised OAS Charter and the protection of human
rights, AJIL, 1975, Vol. 69, No. 4, pp. 828836.
27. Resolution XII, paragraph 2, which refers to articles 1, 2, 3, 4, 18, 25 and 26 of the
Declaration. Article 2 of the Statute already referred to the rights set forth in the Declara-
tion. And article 10 referred to article XXVIII of the Declaration. Concerning the signifi-
cance of this reference in respect of the legal force of the Declaration, see C. Garcia Bauer,
0~. cit., pp. 113-116 and K. Vasak, op. cit., pp. 61-62.
28 . Acuerdo de la Comision (XXVI Period0 de Sesiones), OEAiSer. L/V/11.26, p. 48.
29. See the studies published in The Organization of American States and Human
Rights, 1969-1967, Washington, 1972; Luis Reque, The Organization of American States
and the protection of human rights; Anuario interamericano de derechos humanos, 1968,
Washington, 1973, p. 220. Justin0 Jimenez de Arechaga, Primer informe acerca de la
libertad sindical, OEASer. L/V/11.24; Manuel Bianchi, Los derechos humanos y el derecho
de sufragio en AmCrica,OEA/Ser. L/V/11.19; Durward V. Sandefer, El derecho de petition,
OEAiSer. L/V/11.20; Mario Alzamora Valdez, El derecho a la education en la America
latina, OEASer. L/V/11.25, dot. 39; Gabino Fraga, El agotamiento de 10srecursos internos
previo a la accion international, OEA/Ser. L/V/11.28, dot. 19; Dunshee de Abranches, El
desarrollo de la ciencia y la tecnologia y 10sderechos humanos, dot. 33-27, Rev. 1; Mario
Alzamora Valdez, Desarrollo de la ciencia y la tecnologfa y derechos humanos, dot.
29-27.
30. Thus for example reports have been prepared on: Cuba, Haiti and the Dominican
Republic (all contained in Tke Oyanization of American States and Human Rights, 1960-1967,
Washington 1972); Chile (OAS/Ser.L/V.I1/34, dot. 19 (1974); ALGidoc. 795177(1977)); Nica-
ragua (OAS/Ser.L/V.I1/45, dot. 16, rev. 1 (1978)); El Salvador, OASiSer.LIV.IIi46, dot. 23,
rev. 1 (1978)); Panama (OAS/Ser.L/V.I1/44,doc. 38 (1978)); Uruguay (OAS/Ser.L/V.I1/43,
dot. 9 (1978)); and Paraguay (OAS/Ser.L/V.I1/43, dot. 13 (1978)). For a thorough review of
the fact-finding procedures applied by the Commission see Robert E. Norris Observations
In Loco: Practice and Procedure of the Inter-American Commission on Human Rights,
Texas International Law Journal, Vol. 15, No. 1 (1980), pp. 46-95.
31. See OEAiSer.LiVi11.47 dot. 13 rev.1, 23 June 1979, pp. 28-29.
32. In addition to those mentioned in footnotes 36 and 37 below, cf. the following: Presump-
tion that the facts denounced have been proved by virtue of the defendant Governments
failure to reply, for instance, Cases 1731and 1741, XXXth Report, OASiSer. L/V/11.30, dot.
45, pp. 59 and 64; Case 1688, XXVIIIth Report, OASiSer. L/V/11.28, dot. 24, p. 32; Dis-
missal of a complaint concerning a situation that has been adjudged by a judicial decision
against which no illegality had been alleged, Case 1752,XXXth Report, p. 50; Non-contentious
appeal against the decisions of the Commission, Case 1683,XXXth Report, p. 13; Admissibil-
ity of communications despite the fact that another international procedure is pending, Case
1738, XXXth Report, p. 43.
33. Case 1697, XXVIIIth Session, OEAiSer. L/V/11.28, dot. 24, Q26-41, pp. 8-13; Case
1684, pp. 14-21.
34. Case 1684, XXVIIIth Session, OEAiSer. L/V/11.28, 0 54-59, pp. 17-21. It was even
envisaged to revise the Regulations to provide for this distinction (XXXth Report, OAS/Ser.
L/V/11.30, dot. 45, p. 70).
35. Karel Vasak, La Commission interamericaine des droits de lhomme, Paris, 1968;
Robert K. Goldman, The Protection of Human Rights in the Americas: Past, Present and
Future, New York, 1972;Jose A. Cabranes, The Protection of Human Rights in the OAS,
AJZL, Vol. 62, 1968; L. Ronald Scheman, The Inter-American Commission on Human
Rights, AJZL, Vol. 59, 1965, p. 335; Thomas and Thomas, The Inter-American Commis-
sion on Human Rights, Southwestern Law Journal, 1965, p. 285; D. V. Sandefer, Human
Rights in the Inter-American System, Howard Law Journal, 1965, p. 508; William Korey,
The Key to Human Rights Implementation, International Conciliation, New York, 1968,
No. 570, p. 45.
36. The texts of the Santiago draft, the drafts of the Governments of Chile and Uruguay,
the amendments of the Commission and the final draft of the Convention are reproduced in:
Inter-American Yearbook on Human Rights 1968, Washington, 1973; OEAISer.LIV11.15
and 16.
37. OEA/Ser.G.IV, 787, Rev. 3.(1967).
38. OEA/Ser. L/V/11.19,11 April 1968. This decision of the Commission was based on the
report of C. A. Dunshee de Abranches, Estudio comparative entre 10spactos de las Naciones
Unidas sobre derechos civiles, politicos, econdmicos, sociales y culturales y 10s proyectos
de Convention Americana sobre Derechos Humanos, OEA/Ser.L/V/11.19, 4 April 1968.
Inter-American Yearbook on Human Rights, 1968, Washington, 1973. A decision had al-
ready been taken in favour of the coexistence of the two systems, as is shown by Dunshee de
Abranches, OEASer.LIVI11.19, dot. 18 p. 18.
39. OEA/Ser. G/11, c-a-685, 2 October 1968; and OEA/Ser.GIIV, c-i-858 rev. 3.
40. OEA/Ser. L/V/11.22, doe. 10.
41. Simposio sobre el proyecto de convention de derechos humanos de Santiago de Chile,
Montevideo, 1959; Council of Europe, La Convention europeenne des droits de lhomme et
le projet de convention de Santiago (H.64-8), Strasbourg, 1964;C. A. Dunshee de Abranches,
Estudio comparative entre 10spactos sobre derechos civiles, politicos, economicos, sociales
y culturales y 10sproyectos de convencion americana sobre derechos humanos, OEAiSer.
L/V/11.19, dot. 18; Examen comparative de 10spactos internacionales de derechos humanos y
el protocolo facultativo de1 Pacto international de derechos civiles y politicos, de1 CIJ y de
las ennhedos approbadas por la CIDH, OEA/Ser. L/V/11.19, doe. 4, Anotacien sobre el
proyecto de convention interamericana de protection de derechos humanos, OEAiSer.
L/V/11.19. On the Convention in general, see: Carlos Garcia Bauer. La Convention Ameri-
cana sabre Derechos Humanos. Estudios de Derecho International. Homenaje al Profesor
Miaja de la Muela. T. I, pp. 521-553.
42. XXX Informe de la C.I.D.H., OEAiSer.LIVI11.30, doe. 45, p. 4.
43. The question as to whether there should be one or two Conventions was examined at
length; the present solution was adopted, not only on account of the conceptual unity of all
human rights, but also for technical and even political reasons, since the ratification proce-
dure was more simple in the case of a single Convention. Albert0 Perez Perez, Protection
de 10sderechos humanos, Anuario Uruguayo de Derechos International, II, 1963, p. 284;
Simposio sobre el Proyecto de Convention de Derechos Humanos de Santiago de Chile,
Montevideo, 1959,pp. 49-50; Daniel Hugo Martins, Estado actual de1Proyecto de Convention
Americana sobre Derechos Humanos, Montevideo, 1967, p. 10.
44. In America territorial asylum is governed by the Caracas Convention on Territorial
Asylum (1954) and the Montevideo Treaties of 1889and 1939. For diplomatic asylum, which
is not referred to in the Pact of San Jose, see the Caracas Convention of 1954, the Montevi-
deo Convention of 1933, the Havana Convention of 1928 and the Montevideo Treaties of
1889 and 1939.
45. The Covenant on Civil and Political Rights does not contain any reference to the right
to property, nor does the Rome Convention. But in the latter case, the right to property
was included in Additional Protocol No. 1. Although the text of the American Convention
is modern in its formulation, it subordinates the right to the use and enjoyment of ones
property to the interest of society (art. 21, l), it recommends that the legislature prohibit
usury and any other form of exploitation of man by man (art. 21, 3) and ensures the
international protection of the right to property solely to natural persons (art. 21. 2), in
contrast with what is stipulated by article 1 of the first additional Protocol to the European
Convention.
46. It was Dunshee de Abranches who recommended that economic, social and cultural
rights should not be included in the Convention, OEA/Ser.L/V/ll. 19, dot. 18, p. 42, and he
was followed by the Commission. See a few other criticisms concerning this choice in Pedro
Pablo Camargo, The American Convention of Human Rights, RDHIHJR, Vol. III, 2,
1970, pp. 343-346.
47. Pedro Pablo Camargo, op. cit.
48. The source of this provision is article XXVIII of the American Declaration.
49. It is to be recalled that, as early as 1907, the Central American Court of Justice was
competent to deal with individual requests. The creation of a jurisdictional organ of this
type consequently has an early precedent in Latin America. Carlos Garcia Bauer, op. cit.,
pp. 230-264; Pedro Pablo Camargo, La Proteccibn juridica de 10s derechos humanos y la
democracia en Ambrica, Mexico, 1960,pp. 29-31; Diego Uribe Vargas, Los derechos humanos
y el sistema interamericano, Madrid, 1972, p. 310. Concerning the different solutions
traditionally adopted in this connection by the European system and the Latin American
system, see Karel Vasak, op. cit., pp. 49 and 197.
50. Additional Protocol to the Covenant on Civil and Political Rights, art. 5a, Draft of the
ICI, art. 51; Draft of Commission 1 HR, art. 30, lc; Rome Convention, art. 27b; ECOSOC
Resolution 1503 (XLVIII) 6b, ii; Resolution 1 (XXIV) of the Sub-Commission on Prevention
of Discrimination and Protection of Minorities, 4a. See M. E. Tardu, The Protocol to the
United Nations Covenant on Civil and Political Rights and the Inter-American System: A
Study of Co-existing Petition Procedures, AJIL, vol. 70, no. 4, October 1976, pp. 778801.
51. It is for this reason that I do not consider Camargos criticism to be completely
justified, op. cit., p. 352.
52. The direct source of the Courts jurisdiction is the Rome Convention, in particular
arts. 44, 45, 47 and 50.
53. In contrast with the European system in which this compulsory jurisdiction is estab-
lished only in the second additional Protocol to the Convention (art. 1).
54. This rule does not exist in the European system. It was proposed by Costa Rica at the
Conference (Dot. 83, Corr. 1, p. 6). See Luis Demetrio Tinoco, El Tribunal Europe0 de
Derechos de1 Hombre y la Corte Interamericana de Derechos Humanos, Anuario Hispano
Luso Americano de Derecho International, 5, 1979, p. 103.
55. The Judges elected to the Court are: Rodolfo Piza Escalante (Costa Rica); Thomas
Buergenthal (United States and nominated by Costa Rica); Maxim0 Cisneros Sanchez (Peru);
Cesar Ordonez Quintero (Colombia); Carlos Roberto Reina Idiaquez (Honduras); Miguel
Rafael Urquia (El Salvador); and Huntley E. Monroe (Jamaica).
56. Article 75 which refers to the provisions of the Vienna Convention of 23 May 1969was
proposed by Uruguay at San Jose at the 3rd plenary session (Dot. 85, Corr. 1, p. 8). It
provides for a much more liberal system of reservations than that of the draft of the
Commission which authorized reservations only in the event of the text of the Convention
conflicting with a constitutional precept (OASISer.lXVII1.1, p. 121, art. 67).
57. This is a system similar to that of the Covenant on Civil and Political Rights (art. 48).
The Vienna Convention on the Law of Treaties fixes a period for signature; after that period
has expired, the procedure for adherence is possible (art. 81). The Rome Convention, on the
other hand, refers to signature and ratification (art. 66). In other words, it is open indefi-
nitely for signature and ratification.
58. The Convention was the subject of a reservation on the part of Uruguay and two
declarations (Chile and Ecuador) concerning freedom of ratification. The Final Act of the
Conference (OAS/Ser./XVI/l, 1 Dot. 7OiRev. 1, Corr. 1) contains three declarations. One of
574 Hbctor Gros Espiell
them is restrictive (Argentina), another, on the other hand, is favourable as regards the
compulsory jurisdiction of the Court (El Salvador), while the third consists of a reservation
regarding article 27, 2, and an interpretation of article 48d, together with arguments in
favour of the optional jurisdiction of the Court (Mexico). Robert K. Goldman, The Protec-
tion of Human Rights in the Americas, New York, 1972, pp. 36-42; Pedro Pablo Camargo,
The American Convention on Human Rights, RDHIHRJ, Vol. III, 1, 1970, pp. 353-356.
59. Mexico, which did not sign the Convention, made a partial reservation in the Final
Act. The reservation formulated by Uruguay, relating to art. 23, 2, of the Convention,
concerns article 82, 2, of the Uruguayan Constitution,
60. See Justin0 Jimenez de Arechaga: La Convention Americana de Derechos Humanos
y las posibilidades de su ratification por 10sEstados Americanos, in Revista de Derechos
Humanos, Vol. LV, No. 2-3, FebruaryJune 1974, Puerto Rico.
61. All these instruments are noted in Annex I of this book.
62. These areas, and the action taken with respect to them, are elaborated in CIMs 1980
report to the United Nations Commission on the Status of Women (EICN.6/630).
63. Ibid.
64. The Organization of American States and Human Rights, Washington, 1972, pp.
80-82.
18 Arab
The League of
States*
B. Boutros-Ghali
The League of Arab States is the oldest of the numerous international orga-
nizations that were created at the time when the Second World War was
drawing to its close; not only was it established before the United Nations,
but it also predates all the European or Afro-Asian organizations. The League
has undertaken a number of initiatives in the human rights field, including
the establishment of a Permanent Arab Commission on Human Rights which
first met in 1969. In addition, a draft Declaration for an Arab Charter of
Human Rights was completed in 1971. Other initiatives in which representa-
tives of the League of Arab States have participated include a May 1979
Symposium on Human Rights and Fundamental Freedoms in the Arab Home-
land which adopted a Draft Arab Covenant on Human Rights.
INTRODUCTION: ESTABLISHMENT OF THE LEAGUE AND ITS

RELATIONS WITH THE UNITED NATIONS
On 25 September 1944 a preliminary draft constitutional pact of the League
was adopted, the Protocol of Alexandria, but it was not until 22 March 1945
that the Pact of the Arab League was finally accepted by the seven founding
States: Jordan (then Transjordan), Syria, Iraq, Saudi-Arabia, Lebanon, Egypt
and Yemen. The purposes of the Pact were to strengthen relations between
the Member States, to co-ordinate their political activities so as to achieve
mutual collaboration, to safeguard their independence and to defend the
interests of all the Arab countries.
The League comprises a Council which is its supreme organ and meets
twice yearly in ordinary session. It has a permanent Secretariat whose
headquarters are in Tunis and which is directed by a Secretary-General
appointed by the Council. The League also includes several permanent
special Committees, which merit our attention since the Arab Commis-
*Editors note: This Chapter is a revised and updated version of the Chapter prepared for
the earlier French edition of this book by B. Boutros-Ghali.
576 B. Boutros-Ghali
sion on Human Rights falls within this category. The six permanent
committees, established in accordance with the 1945 Pact, deal with eco-
nomic, communications, cultural, legal, social welfare and health matters.
Subsequently, from time to time, new committees have been constituted
and dissolved. These committees, which are composed of delegates from
all the Member States, meet at the seat of the League or in any of the
Arab capitals. They are convened by the Secretary-General and elect a
Chairman for a period of two years. Their debates are not made public
and their recommendations are adopted by a simple majority. Each com-
mittee prepares a co-operation programme in its respective field. These
recommendations, resolutions and programmes must then be approved
by the Council of the Arab League.
Although the Pact of the Arab League was adopted before the Charter
of the United Nations, the Arab legislators provided, in two articles, both
for collaboration with the future international organization and for amend-
ments to the Pact to take account of new international obligations arising
from the UN Charter. Even before the UN had been constituted, the
Arab League had thus implicitly recognized the superior position of the
new world organization and had declared its wish to work in harmony
with it. The Joint Defence and Economic Co-operation Treaty adopted by
the Arab States on 17 June 1950 contains several affirmations of its
compatibility with the UN Charter (Preamble, art. 2, and art. 11 of the
Treaty).
On 1 November 1950, the UN General Assembly, recognizing the League,
invited its Secretary-General to take part in the sessions of the Assembly
as an observer. Since that date the Secretary-General of the League has
participated regularly in all the Assemblys sessions. In December 1954,
the Arab League established permanent representation with the UN in
New York and two years later, in Geneva. The two international organi-
zations also co-operate with each other at the level of their Secretariats.
It is in the context of this co-operation that the role played by the Arab
League in promoting human rights should be considered.
1. THE REGIONAL ARAB COMMISSION ON HUMAN RIGHTS2

Co-operation between the Arab League and the United Nations on human
rights was intensified when the Council of the Arab League adopted resolu-
tion 2259146 by which it created a Special Commission to prepare an Arab
contribution to Human Rights Year (1968). A few months later the Arab
League adopted a further resolution creating a second Commission to study,
in conjunction with the first, the application of the programmes established
to celebrate Human Rights Year @es. 2304/46).
In December 1967, the views of the Secretary-General of the Arab League
were sought by the UN on a proposal to create regional human rights com-
The League of Arab States 577
missions. In response the League endorsed the proposal on condition that:

such a commission should be established within the framework of the perma-
nent bodies of the Arab League; the League itself should determine the
terms of its co-operation with the UN Commission on Human Rights; and a
general congress, to which the regional commissions would be invited, would
have the task of co-ordinating relations between those commissions and rele-
vant organs of the UN and its specialized agencies.
In September 1968, the Council of the Arab League, after considering a
draft prepared by the two special Commissions already referred to, adopted
a resolution (2443148) relating to the creation of a Permanent Arab Commis-
sion on Human Rights. Shortly afterwards, in December 1968, a Regional
Conference on Human Rights was held in Beirut. The eight resolutions voted
by that Conference were to serve as a background to the subsequent work of
the projected Arab commission. They were primarily intended to safeguard
human rights in the Arab territories occupied by Israel.
Consideration will now be given to the membership, procedures and prin-
cipal activities of the Commission. It is to be noted, however, that although
the Council of the League has regularly elected a Chairman for the Commis-
sion, no meetings have been held in recent years.
(a). Membership of the Commission
The membership of the Arab Commission on Human Rights conforms to that

of all the other special committees previously created by the League of Arab
States. It is composed of delegates of the Member States of the League
together with the delegate of Palestine represented by the P.L.O. It adopts
its resolutions by a simple majority.
(b). Procedures
The Rules of Procedure of the Arab Commission on Human Rights stipulate

that each State may be represented by one or more delegates but that each
may have only a single vote (article 2).
The role of the Secretariat-General of the League, also represented within
the Commission, is that of an intermediary between the Commission and the
Council of the League which studies the results of the work of the Commis-
sion and approves the drafts and agreements prepared by the Commission
(art. 12). The Secretariat-General is also responsible for making the neces-
sary contacts with Member States (art. 14). The Secretary of the Commission
is an official of the Secretariat-General (art. 6).
The work of the Commission on Human Rights takes the form of drafts and
agreements (art. 12) and its decisions are taken by a simple majority of the
representatives present (art. 9).
(c). Work of the Commission

When the Commission held its first meeting in Cairo (March 1969), the after-
effects of the Arab-Israeli conflict dominated the proceedings. At its second
session (April 1969), the Commission established a work programme, the
essential purposes of which were to call attention to the difficult position of
the Arab population in the occupied territories and to promote respect for
human rights in the Arab world. The Commissions activities were envisaged
at three levels: the national level, the regional level and the world level.
At the national level, the Commission invited the Member States to form
national commissions on human rights with a view to co-operating with the
regional Commission in the framework of joint Arab action in the field of
human rights (Resolution 10, Session II).
At the Arab regional level, the Commission proposed to co-ordinate the
activities of the national commissions in the various Arab countries. It in-
vited the Secretariat-General of the League to create a special department
for human rights (Resolution 11, Session II; Resolution 7, Session V). The
regional Commission had noted, in receiving the ad hoc group sent by the
United Nations to investigate the position of the Arab population in the
occupied territories, that it would be worthwhile creating an inter-Arab sec-
tion in order to co-ordinate the efforts of the Arab States in this field and
facilitate the task assigned to the UN ad hoc group.
At the world level, the underlying aim of the activities of the regional
Commission is to appeal to humanitarian principles and to international law
in order to arouse greater interest in the Arab cause. It is for this reason that
the problems tackled by the Commission have centered around the following
themes: the rights of combatants in the event of war or armed conflict in
accordance with the provisions of the Geneva Conventions of 1949; the legit-
imacy of the struggle waged by the Palestinian Resistance (Resolution 6 of 10
July 1968); and the protection of holy places and archaeological sites in accor-
dance with the principles established by international law (Resolution 8 of 10
July 1968).
In initially pursuing these objectives, the regional Commission made a
sustained effort to achieve international co-operation at all levels with a view
to rallying world public opinion to the Arab cause.
When an African Seminar was held in Cairo in 1969 under UN sponsorship
to examine the question of the creation of an African Commission on Human
Rights, the Arab Commission participated and paved the way for possible
co-operation between itself and any future African Commission. The Arab
Commission has also taken part in a variety of other human rights-related
meetings and seminars organized by the UN. In addition, the League of Arab
States has consistently been represented at sessions of the UN Human Rights
Commission. Furthermore, when the Commission on Human Rights decided
to set up an ad hoc Committee of Experts to investigate the position of the
Arab population in the occupied territories, the regional Commission made a

point of placing at the disposal of that Committee all information likely to
facilitate its task. A similar effort was made when a special committee, ap-
pointed by the General Assembly (res. 2443 (XXIII)(1968)), visited the Arab
countries.
2. THE DRAFT DECLARATION FOR AN ARAB CHARTER OF

HUMAN RIGHTS
Pursuant to the recommendation formulated at the Beirut Conference men-
tioned above, the regional Commission applied itself to the task of preparing
an Arab Charter of Human Rights. At its fourth session, the Commission
invited the Secretariat-General of the League to put the finishing touches to
the draft Arab Charter and suggested that recourse be had to the experts of
the United Nations to complete this task. A maximum period of six months
was fixed for submission of the draft to the Member States.
In September 1970, the Council of the League set up a Committee of
Experts to prepare a draft declaration (Resolution 2668/30). Meeting at the
Secretariat-General of the League from April to July 1971, the Committee
adopted a draft which was submitted to the Member States. While a number
of States submitted comments on the draft, not all took the opportunity to do
50.~ It is thus to be regretted that in 1982, more than a decade after the
completion of the first draft, no further progress has been achieved.
If the Universal Declaration of Human Rights is compared with the Arab
draft, it is seen that the latter contains all the rights and freedoms proclaimed
by the international community. The few specific features presented by the
Arab draft consist in the more precise terms in which certain articles are set
forth, dictated by regional considerations.
As a whole, the draft reflects at once a concern for continuity with the past,
a desire to achieve Arab unity and lastly, a call for justice in respect of the
Arab populations living in the occupied territories. This threefold objective
gives the draft a specifically Arab regional character without, however, de-
parting from the spirit of the Universal Declaration.
Overall, however, the activities of the Arab Commission on Human Rights
seem to have been concerned more with international endeavours than with
the problems of the different Member States of the League.
3. OTHER RELEVANT ACTIVITIES4
(a). The Commission on the Status of Arab Women

Another human rights-related regional body which is of significance in the
present context is the Commission on the Status of Arab Women. The Com-
mission is represented by an observer at meetings of the UN Commission on
the Status of Women and has, since 1951, generally presented a report on its
activities to the latter body. As an indication of the scope of its activities, the
1978 report of the Commission noted that the following were among the
issues dealt with: (a) family law in the Arab world, with attention to the
position of women and to the need to eliminate sex-based discrimination; (b)
education and the elimination of illiteracy; (c) the role of women, particularly
in rural areas, in national development; (d) the role of women in promoting
improved nutrition; and (e) the portrayal of women by the mass media.5 The
1978 report also noted that the Council of the League of Arab States had
adopted an Arab Plan of Action relating to the status of women.
(b). The Baghdad Symposium

In May 1979 a Symposium on Human Rights and Fundamental Freedom in
the Arab Homeland was held in Baghdad, Iraq under the auspices of the
Union of Arab Jurists. The symposium was attended by the representatives
of a wide range of organizations from the Arab world and it formulated a
number of recommendations. Amongst these was a decision to establish a
Standing Committee for the Defence of Human Rights and Fundamental
Freedoms in the Arab World to be composed of representatives of profes-
sional and peoples organizations and other Arab personalities concerned
with human rights. The Committees mandate was defined as being: (a) to
monitor the implementation of the recommendations of the Symposium, in-
cluding efforts to persuade the Arab States to ratify the draft Arab Covenant
on Human Rights and Fundamental Freedoms, the implementation of whose
provisions it would likewise monitor; (b) to receive complaints from individ-
uals and groups regarding violations of rights and freedoms; (c) to send
fact-finding missions to investigate violations of rights and freedoms in the
Arab States with a view to ascertaining the best ways and means to protect
and defend those rights and freedoms; and (d) to prepare annual reports on
the situation with regard to rights and freedoms in the Arab world for sub-
mission to Arab public opinion, Arab Governments and international bodies
concerned.
The Baghdad Symposium also: drafted an Arab Covenant on Human Rights
and Fundamental Freedoms to be submitted for comments to groups con-
cerned with human rights in the Arab world; appealed to the Arab States to
ratify the International Covenants on Human Rights and a number of other
international human rights instruments; appealed to the League of Arab
States to activate its Standing Committee on Human Rights; reiterated the
right of the Palestinian Arab people to self-determination; and recommended
(1) that freedom of opinion and of the press in the Arab world be strength-
ened; (2) the adoption of measures to improve enjoyment of the rights to
freedom of movement, residence and work in the Arab world; and (3) the
abolition of special legislation, special courts and political detention particu-
larly in the context of states of emergency.
On the subject of womens rights, the symposium noted the distressing

circumstances in which women in most Arab States find themselves and
recommended, inter alia, that efforts be made to abolish sex-based discrimi-
nation and to adopt legislation that would allow women to enjoy their full
political, civil and social rights. The symposium also emphasized the impor-
tant role of non-governmental organizations in the promotion, protection and
defence of human rights and the need to increase the teaching of human
rights and humanitarian law in Arab educational institutions.
In conclusion it may be said that the Arab world is still dominated by the
struggle for liberation rather than the pursuit of a policy of co-operation. The
majority of Arab States has not, as of 1982, ratified the International Human
Rights Covenants and none has ratified the Optional Protocol to the Interna-
tional Covenant on Civil and Political Rights. The Permanent Arab Commis-
sion on Human Rights has, like other organs of the League of Arab States,
concentrated most of its efforts on the problems of human rights in the
occupied territories, far more than on the problems of human rights within
the territories of each Member State. Be that as it may, the interest shown
by the Arab League as a whole and by each of the Arab States individually in
the problems of human rights is a sign that the process of establishing a
Pan-Arab legal system to protect the rights and freedoms of Arabs is under
way. It will be difficult to reverse this process. In the future the struggle for
peace, freedom, justice and development will take precedence over the strug-
gle for national liberation, once the goal of the latter has been achieved.
NOTES
1. In 1980the full membership of the League of Arab States consisted of: Algeria, Bahrain,
Djibouti, Iraq, Jordon, Kuwait, Lebanon, Libyan Arab Jamahiriya, Mauritania, Morocco,
Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia,
United Arab Emirates, Arab Republic of Yemen and Peoples Republic of Yemen.
2. See S.P. Marks, La Commission Permanente Arabe des Droits de lHomme, RDH-
HRJ, Vol. III, pp. 101-108.
3. See generally the reports submitted by the League of Arab States to the UN Commis-
sion on Human Rights, including ECN.411089 (1971); E/CN.4/1229 (1976); and EiCN.411283
(1977).
4. See generally: Moufid M. Chebab, Droits de lhomme, universites et monde Arabe,in
Lenseignement des droits de lhomme (Paris, Unesco, 1980) pp. 229-233; and A. H. Robert-
son, The Permanent Arab Commission on Human Rights and the Proposed African Com-
mission in Human Rights in the World (Manchester University Press, 1973) pp. 140-158.
5. See E/CN.6/617 (1978).
6. The report was sent to the UN General Assembly in doe. A/C.3/34/11 (1979).
19 African
The Organization of
Unity (OAU)
Kt3ba MBaye and Birame Ndiaye
1. HUMAN RIGHTS IN AFRICA by Keba MBaye

It is somewhat paradoxical to speak of human rights in Africa when, by
their very nature, human rights concern each and every one of us, at one and
the same time, without any consideration as to geographical location or ad-
herence to a particular ideology.
In examining the situation in dominated Africa, traditional Africa and
independent Africa, we shall see that each of these periods has its own
characteristics and that, where human rights are concerned, the whole of
Africa has been treated in a particular way.
(a). Human rights in dominated Africa
(i). UNIVERSALIS~I~F HUMANRIGHTS?
The universal vocation of human rights led Leopold Sedar Senghor to caution
the negotiators of the European Convention of 4 November 1950, Article 63
of which set the non-metropolitan territories outside the field of application of
the new provisions. Senghor, then a member of the French Parliament,
urged them to beware lest they prepare a Declaration of the Rights of the
European Man. Unfortunately, the ministerial organ of the Council did not
feel it necessary to follow the recommendations of the deputy from Senegal,
despite the preamble of the Universal Declaration of Human Rights which
proclaims that all nations shall strive to secure the universal and effective
recognition and observance [of human rights], both among the peoples of
Member States themselves and among the peoples of territories under their
jurisdiction.
Related in this way, this event demonstrates that there is a natural ten-
dency on the part of the western countries to consider human rights at the
universal level only with a certain reluctance. And it is perhaps this which
accounts for the lack of any systematic doctrine in this field. Such a tendency
Keba MBaye and Birame Ndiaye
flies in the face of the very ideology of human rights; but, in the last analysis,
is it not in keeping with the nature of things?
Since the Magna Carta, the different Declarations concerning rights and
freedoms have been prepared by and for the societies to which their pro-
moters belonged. Consequently, populations under foreign domination, and
more particularly those of Africa, have always been prevented from benefit-
ing unreservedly from the protection afforded by human rights rules. In the
European possessions of Africa, the distinction between citizens on the
one hand and natives on the other caused no account to be given to the
principle of equality (and, at the same time, all the rules resulting from it),
when non-citizens were concerned.
(ii). COLONIZATION AND HUMAN RIGHTS
Right to self-determination
Is not colonization in itself a denial of human rights? And is not the right of
peoples to self-determination the first human right in that all the others are
dependent on it? This is clearly recalled by the Law of Lagos. For how can
one justify the domination of one people by another without accepting in
advance the inferiority of those dominated? As Jeanne Hersch has written,2
The colonialists prime object was to go on exploiting their victims, and they
justified their exploitation by an appeal to racial prejudice-the claim that
those they were exploiting were intellectually inferior.
On the fallacious pretext of respecting local traditions, the laws applied
in the colonies were discriminatory. French nationality, for instance, was
granted to everyone, citizens and natives, but only the former enjoyed public
rights, in particular the right to vote (which, for Aristotle, constituted citi-
zenship), at least until the law of 7 May 1946. The Universal Declaration of
Human Rights itself neglected to mention the right to self-determination.
Public freedoms
In order to have access to public freedoms, it was necessary to enjoy civil
and political rights, that is to say, to be recognized as a citizen. This rule
applied in particular to public office in the French overseas territories prior
to 1928. The indigenous population was allowed access to certain posts by a
decree of 17November 1928.
Forced labour
The commandeering of native manpower was justified by the fact that
such manpower was needed for the first clearance operations and not enough
workers presented themselves voluntarily, if there were any at all.4 The
French decree of 21 August 1930 authorized forced labour on two conditions:
the goal pursued had to be in the public interest; and there had to be no
The Organization of African Unity (OAU) 585
means of obtaining voluntary labour. These conditions were, of course, soon

invoked; there was no effective system for checking that they had been met.
Moreover, it was easy for the settler who exploited the natives by availing
himself of forced labour to demonstrate that those conditions had been satis-
fied. He was, however, not generally asked to do so.
International law itself was a party to these practices. Thus, the General
Conference of the IL0 at its 1930 session adopted a draft convention, declar-
ing merely that forced labour should be suppressed within the shortest possi-
ble period, thus tacitly accepting its existence, which it subjected to due
regulation and allowed for public purposes. And yet, as has been recalled
by Jean-Bernard Marie,5 the IL0 was in the vanguard of the struggle for
human rights. Under Article 421 of the Treaty of Versailles, the Member
States of the IL0 undertook to apply to their possessions the Conventions
adopted by them, subject to local conditions allowing of such an extension and
with the reservation that the said Conventions may be modified to take
account of local contingencies. When it is known that it was left to the coloniz-
ing State to interpret the notion of local contingencies, it is immediately
seen that this provision could not but remain a dead letter.
Human rights: a world programme?

Does it need to be stressed, finally, that the Declaration signed on 1 Janu-
ary 1942 in Washington, following on from the four freedoms of President
Roosevelt and the Atlantic Charter, essentially concerned those peoples
who were at war against Nazism and consequently was of very small interest
to Africa? It proclaimed that complete victory over their enemies was essen-
tial to preserve human rights and justice in their own lands as well as in
other lands. It is clear that the signatories of this Declaration were primar-
ily concerned with bringing the Second World War to an honourable conclu-
sion and with its consequences in their respective countries, leaving in the
background the question of ensuring human rights and freedoms throughout
the world.
The Universal Declaration of Human Rights of 1948 did not have the effect
of putting an end to the discriminatory practices resulting from colonization.
The Second World War had revealed a racism practised by white men against
white men and, at the same time, the precarious nature of the rules estab-
lished to protect human rights in the West.
Thus the measures taken at the time to prevent a return to the horrors of
Hitlerism were closely bound up with the circumstances which had inspired
them. Jeanne Hersch has rightly written: The statement, in the preamble to
the Constitution of Unesco, adopted in 1946, that the Second World War (the
great and terrible war which has now ended) was a war made possible by the
denial of the democratic principles of the dignity, equality and mutual respect
of men and by the propagation, in their place, through ignorance and preju-
586 Keba MBaye and Birame Ndiaye
dice, of the doctrine of the inequality of men and races does not refer primar-
ily to colonialist racism, but to Hitlerian racialism.6
Furthermore, the African countries played but a minute part7 in the prepara-
tion of the Universal Declaration. For a long time afterwards, it was not
applicable to the nationals of those countries. Neither civil and political rights,
nor economic, social and cultural rights were able to be applied to them
without restrictions. And these restrictions were not necessitated either by
respect for the right of others or by the safeguarding of public order, security
or morals.
The principle of equality

The principle of equality before the law, although recognized by the Con-
stitutions of the colonizing countries, was not applicable to those colonized.
The French Constitution of 1946 provided (Article 80) that all nationals of
the overseas territories rank as citizens, by the same right as French na-
tionals. . It then added, however, that special laws shall establish the
conditions under which they may exercise their rights as citizens. Despite
Articles 81 and 82 which provided that nationals of the French Union ranked
as citizens of the French Union, which ensured them of enjoyment of the
rights and freedoms guaranteed by the Preamble of the Constitution, and
that the special status which the new citizens were entitled to preserve could
not, in any event, constitute a ground for refusing or limiting the rights and
freedoms guaranteed to French citizens, the application of these principles
was far from being in conformity with their spirit.
Criminal proceedings
Until 1946, in the French colonies, particular penal legislation was applica-
tion to the indigenous population, without any guarantee as to their security
and safety. The punishments inflicted upon them were sometimes humiliat-
ing. Even today, in Namibia, men and even women are subjected to public
flagellation, in violation of article 5 of the Universal Declaration, which pro-
hibits cruel, inhuman and degrading punishment or treatment.
Migrations
The purpose of the restrictions placed on migrations by the regulations was
to provide the agricultural settlers with low-cost labour, and they violated
the principle of the right to freedom of movement. Freedom of expression
was unrecognized, as was freedom of association. Participation in the conduct
of public affairs was in reality but an illusion, since the indigenous population
only exercised subordinate functions.
Free choice of employment

The political and social structures did not make the free choice of an occu-
pation possible. The worker was not protected. In the French overseas territo-
ries it was necessary to wait until 1952 for there to be a Labour Code.
Despite the vast progress thus achieved, the principle equal work, equal
pay was not always respected.
The number of examples could be multiplied and each time it could be
shown that the rules for the protection of human rights were not applied to
colonized peoples. The normal consequence of such a situation has been that
the peoples of Black Africa and Madagascar have always considered them-
selves to be completely alien to the principles and rules governing human
rights. It was for this reason that, labouring under a feeling of frustration,
their leaders in political or trade union organizations struggled above all to
acquire equality and to be assimilated. Few of them were successful in shak-
ing off the complex of inferiority which had been inculcated in them, in order
to aspire to independence and to the affirmation of their own personalities.
In the majority of cases, independence was not the result of an armed
struggle, but was granted in the framework of the decolonization campaign
which was launched and supported immediately after the Second World War
by the United Nations and the two super-powers (the United States and the
Soviet Union).
(iii). THE CASE OF RHODESIA, SOUTH AFRICA AND NAMIBIA
The combined efforts of the United Nations, the OAU and the liberation
movements led Portugal to liberate its former colonies: Guinea Bissau, Cape
Verde, Mozambique and Angola. The problems of Namibia and South Africa
remain, Zimbabwe (former Southern Rhodesia) having achieved independence.
South Africa is responsible for the failure of the Geneva Conference on Namibian
Independence.
South Africa, with its system of apartheid, maintains more than nineteen
million Blacks, Coloured and Indians in a situation incompatible with the idea
of human rights. Equality at birth is not recognized. Neither the right to life
nor the right to freedom are considered to be fundamental rights. Obviously,
all other rights are swept aside. A precise analysis of the situation in South
Africa can be found in the reports drawn up by the ad hoc Group of Experts
of the Commission on Human Rights since 1967.
In maintaining its presence in Namibia against the will of the international
community, which has responsibility for the administration of that territory,
South Africa has adopted a flagrantly unlawful attitude and, in addition, has
extended apartheid to former South West Africa. This situation which has
been imposed on Africa contrasts with the traditional rules which were in
force on the continent before the arrival of the Whites. In pre-colonial Africa
there existed a system of rights and fundamental freedoms which was adapted
to the political and social situation of the period.
(6). Human rights in traditional Africa
(i). GENERALREMARKS
In a communication presented by the World Veterans Federation on the

occasion of the United Nations seminar held in Dakar from 8 to 22 February
1966, the following observation stands out: How can a peasant from the bush
appreciate freedom of expression, when the possibility of having modern
fertilizers at his disposal would be much more valuable for him?
This remark stems from a widespread idea which seems, a prioti, to be
justified. It brings out the fact that concern for effecting a radical change in,
and improving, the quality of life clearly takes precedence over any desire to
enjoy human rights and freedoms. Bread comes before roses. It might be
concluded from this that, in societies which have not yet attained a certain
level of satisfaction of their essential needs, men are not very worried about
their rights and freedoms.
Such a conclusion would be a hasty and even false one in regard to tradi-
tional Africa. Admittedly, it is easy to meet needs in societies which are
insufficiently developed, since those needs are reduced to the essential. In
any event, pre-colonial Africa possessed a fitting system of rights and free-
doms, although there was neither the recognition nor the clear formulation of
such rights and freedoms as they are recognized, formulated and analyzed
today. Nevertheless, it would be easy, in describing them as they were, to
discover a definite kinship which undeniably links them to the present system
of human rights. Those rights were recognized and protected. However, such
recognition and protection must be understood in the context of the societies
of yesteryear, split up and graded according to a hierarchy by the caste
system and at the same time unified by mythical beliefs.
(ii). THE AFRICAN CONCEPTION OF LAWAND AFRICAN HUMANISM
Whereas modern man chooses between several types of society and shapes
his law with the aim of achieving the object of his choice, in traditional
African societies, the purpose of law is to maintain society in the state in
which it has been transmitted by the elders, physically dead but still alive.
The dead are not dead, as the poet Birago Diop has said. Any contravention
of that law leads to penalties which may consist in the elimination of the
guilty person from the group. Thus, through rejection, the head of a Mala-
gasy family may exclude a child from the protection afforded by the tombs,
and consequently by the family and the community.
The European conception of human rights, that is to say, a set of principles
whose essential purpose is to be invoked by the individual against the group
with which he is in conflict, is not met with in traditional Africa. In Africa,
the individual, completely taken over by the archetype of the totem, the
common ancestor or the protective genius, merges into the group. As has
been pointed out by Professor Collomb, living in Africa means abandoning
the right to be an individual, particular, competitive, selfish, aggressive,
conquering being. in order to be with others, in peace and harmony with
the living and the dead, with the natural environment and the spirits that
people it or give life to it.
In traditional Africa, rights are inseparable from the idea of duty. They
take the form of a rite which must be obeyed because it commands like a
categorical imperative. In this, they tie in, through their spiritualism, with
the philosophy of Kant. The remark made by Jouon des Longrais in connec-
tion with Confucianist Asia may be applied to Africa which prefers the ideal
of equality and freedom, relations founded on attentive protection and re-
spectful subordination.
If one bears in mind these features of African sociology, it becomes easy to
single out a few fundamental rights as examples and demonstrate that they
were well and truly recognized in traditional Africa. African society was both
socialist and humanistic. It could not fail to have particular respect for man
and for all that attaches to him, including his rights. This philosophy is
expressed in the Woloff adage: Nit moodi garab u nit (man is mans cure)
which Leopold Sedar Senghor never fails to recall. This form of humanism led
to religious respect for others and the recognition of the rights and freedoms
of everyone and of the entire group. We shall now review some of these
rights and freedoms.
The right to life

On account of their traditional religious beliefs, Africans scrupulously re-
spect life, even that of animals. Furthermore, life is not interrupted by
death. It is the work of the gods and it is not in mens power to modify it or
interrupt it. Children are taught that it is wrong to kill except in case of need:
to feed oneself, to defend oneself, to make a sacrifice or to protect another life
or a possession. Of course, these principles apply in particular to man.g The
right to life requires not only that life be respected but also that it be main-
tained. Thus, not only is killing prohibited but it is also recommended to
support life.
Freedom of expression
Freedom of expression was recognized in traditional Africa. However, it
was exercised only in the framework of public or private institutions, in
pursuance of the particular rules governing those institutions.
Religious freedom
Religious freedom was protected. It was exercised within the tribe or the
ethnic group. And if it might not appear to be total within a single group or
family, it was simply because beliefs were transmitted from parents to chil-
dren, and the reverential respect due to elderly persons in fact left small
room for any choice by the members of the same ethnic group.
Present-day Africa has retained this custom of respecting religious beliefs,
as is borne out by the following words pronounced by the Senegalese deputy
Galandou Diouf in 1936, on the occasion of the inauguration of the Cath&draZe
du Souvenir africain in Dakar. Addressing Cardinal Verdier, Galandou spoke
as follows: In inaugurating this church, your Eminence testifies to the bonds
that link my country to the French motherland. Every morning, when dawn
casts golden light upon the cathedral and the mosque, when, evening after
evening, the imposing dome of the one and the delicate minarets of the other
merge their shadows in the twilight, the sound of your bells and the chant of
our muezzins will join together in inviting the faithful to pray to the Almighty
on behalf of those whose memory must remain because they helped to create
French Africa.
Freedom of association
Freedom of association was virtually total. Africans formed all kinds of
groups among themselves. There were workers associations which included
cultural societies, admirably described by Zi-Kerbo. There were occult asso-
ciations, associations formed for the purpose of entertainment, by age group,
for games, etc.
Freedom of movement
Freedom of movement from one territory to another was a sacred principle
which could be limited only by the insecurity of travel. The legendary hospi-
tality of the Africans is but an outward sign of this freedom. Not only was the
foreigner welcomed, but he was shown particular attention by the members
of the host tribe; and the tokens of sympathy with which he was surrounded
are evidence of the fact that man as such was recognized as having fundamen-
tal rights, as was the group to which he belonged, for, in the final analysis,
such tokens were but the first gropings of the law of nations: respecting a
foreigner means respecting the entity to which he belongs.
Foreigners were granted the right of asylum. Many examples are to be found
in the history of Africa. Refugees were placed purely and simply on the same
footing as autochthons. They were granted the right to settle, to possess a
field, to found a family, etc. No conditions had to be met to leave ones coun-
try or to return to it, or to settle elsewhere, either temporarily or for good.
The right to work

Work was both a right and a duty. In African society, which was struc-
tured along socialist lines, work was carried out principally for the benefit of
the group, but also for the individual. In certain social units, the community-
oriented character of which was more pronounced, the division of labour
according to age made it possible to call on everyone so as to ensure, in the

best conditions, the life and prosperity of all. Thus, in Gandoul (Sangomar
Islands at the mouth of the Saloum in Senegal), the children watched over the
fields and the livestock, the young people fished, the men cultivated the
fields, the women prepared the meals and kept the houses and streets clean,
while the old people wove the pagnes. Thus, everyone put his or her skills
and industry at the disposal of the group.
The right to education

The right to education took the form of a duty to be borne by the commu-
nity in order to make each child a fitting and useful element of the group.
Education was the responsibility not only of parents but also of grandpar-
ents, brothers and sisters, uncles and aunts, cousins and even friends and
neighbours. Everyone took an active part in the training and supervision of
young men and women with a view to turning them into good citizens.
Colonization disturbed the harmony of traditional society and changed the
nature of the social relations on which it was founded by practising slave
trade and forced labour and, in general, by denying the Africans the right to
enjoy human rights and freedoms.
(c). Human rights in independent Africa
(i). CONSTITUT~ONALPRINCIPLES AND REALITY
It was reasonably to be expected that the former colonies, long prevented

from enjoying public freedoms, would, once they had acceded to international
sovereignty, set themselves up as passionate defenders of human rights. It
is a fact that, as soon as they were formed, the African States immediately
became members of the United Nations and unreservedly accepted its prin-
ciples and norms, in particular the provisions of the Charter of San Francisco
and those of the Universal Declaration of Human Rights.
As has been observed by Lavroff and Peiser, they then drew up constitu-
tions and laws, adopting the terms of the Universal Declaration or referring
to it. Some constitutions did not merely recall or quote the principles laid
down by the principal documents relating to human rights. They defined, in
special articles, public freedoms, thereby making them into provisions of
positive law capable of being directly invoked in a court case. On the occasion
of the Lagos Conference in 1961, El Hadji Sir Abubakar Tafawa Balewa
emphasized this fact in respect of Nigeria. l3 On the invitation of the Nigerian
Head of Government, the Law of Lagos stipulates that: fundamental human
rights, especially the right to personal liberty, should be written and en-
trenched in the Constitutions of all countries. . .
However, things are quite different in reality. Looking beyond the phrases
set down in these constitutions and laws, one discovers an Africa more con-
cerned with achieving economic and social development and maintaining the
stability of its government than with recognizing and promoting rights and
freedoms. It is not to be denied that the myth of equality which haunted
mens minds within the colonial entities survives at the international level.
But what is claimed is the right to equality in the enjoyment of the wealth of
the universe. Hence the pursuit of development for the sake of which all
sacrifices are permissible.
(ii). THE OAUANDHUMAN RIGHTS
In this connection, the Organization of African Unity provides an eloquent

illustration. At the opening of the Conference of Addis Ababa on 22 May
1963, Emperor Haile Selassie laid down in his introductory speech what were
to be the true concerns of the African States: unity, non-interference and
liberation. The Charter of the OAU provided at the outset for five specialized
Commissions; but none of them were concerned either with human rights or
even with legal matters. It is interesting to note this omission and to compare
the attitude of the negotiators of Addis Ababa with that of the delegates of
the San Francisco Conference who produced the Charter of the United Na-
tions, in which a leading place is given to rights and freedoms.
An important event occured in Banjul (The Gambia) in January 1981: The
Conference of Ministers of Justice of the OAU adopted a draft African Char-
ter of Human and Peoples Rights. The Charter was subsequently adopted by
the Thirty-seventh ordinary session of the Council of Ministers of the OAS
and the OAS Assembly of Heads of States and Government, meeting in
Nairobi, Kenya in June 1981. The full text of this Charter is reproduced as
Part 3 of this chapter.
(iii). THE ~NANDHUMAN RIGHTS
The place given by the UN Charter to the defense of human rights is perhaps
to be accounted for by the keenness of the sad memories which had been left
in the minds of the Europeans by the Second World War. Jean-Bernard
Marie gives the following explanation: l4 When on 25 April 1945 the United
Nations Conference on International Organization opened, the end of the war
was imminent and a new climate reigned at San Francisco. While the prob-
lem of security was a burning issue at Dumbarton Oaks, the immediate
concerns of.the United Nations now were the organization of peace and
economic and social co-operation. This more positive and open climate which
reigned among the delegates to the Conference was to prove conducive to the
new importance to be given to human rights in the Charter to be prepared.
(iv). THE~OCIOLO~GYOFH~MANRI~~TSIN~~NTEMP~RARYAFRICA
The Africans concerns were quite different. Having long suffered from pov-
erty, they wanted above all to make up for their economic backwardness,
protect their fragile independence and help the other peoples of the continent
The Organization of African Unity (OAU)
to shake off the colonial yoke. This single-mindedness is revealed by the

importance they accorded to commissions of an economic character. Once
they had acquired independence, what they sought was improved well-being
through an increase in the resources of each country. They reached a point
where they neglected all that did not seem likely to consolidate their sover-
eignty and ensure their economic progress. What was involved here was a
questionable conception, to say the least, of true economic and social devel-
opment. Such development must necessarily include respect for the human
person and the protection of his rights and freedoms. In assessing standards
of living, the United Nations rightly take account of human freedoms.
Admittedly, during the first year of its existence, the OAU Assembly of
Heads of State felt the need to create commissions for certain essential ques-
tions which had not been covered elsewhere by the existing organs. Thus, a
Commission of Jurists came into being at the same time as a Commission of
Communications. But if one refers to the Lagos Conference of 1964, the occa-
sion on which the idea was first put forward, it is seen that the purpose of the
Commission of Jurists was not so much to act as an organ for the promotion
and protection of human rights as to provide an instrument for legal research.
Moreover, it was short-lived, and never properly came into being.
(V). THE FATE OF HUMAN RIGHTS
The attitude of the jurists

The African jurists, cautioned by their technical knowledge, eventually
provided support for the attitude of the politicians which tended to relegate
both human rights and any broad interpretation of the rules protecting them
to the background. The first contact between African jurists took place in
Lagos in January 1961 and the theme was the rule of law. This was imme-
diately after decolonization and one can detect, in the work of the Lagos
Conference, a certain enthusiasm on the part of the Africans engaged, on
behalf of their respective countries and of the continent as a whole, in
the preparation of a coherent system for the recognition and protection of
rights and freedoms. In their adherence to the principles and precepts laid
down by the Universal Declaration of Human Rights, no false note was
sounded.
The Law of Lagos unambiguously proclaims that the Rule of Law is a
dynamic concept which should be employed to safeguard and advance the
will of the people and the political rights of the individual and to establish
social, educational and cultural conditions under which the individual may
achieve his dignity and realize his legitimate aspirations in all countries,
whether dependent or independent. Admittedly, the Lagos Conference
was attended only by jurists. But those jurists had done so with the ap-
proval of the national political authorities who had backed their participation
in the Conference.
The attitude of the political authorities

After 1961, and once the first steps had been taken in the full exercise of
national sovereignty, the political authorities responsible for the different
states were faced with the hard facts of reality in the form of the countless
difficulties which had arisen: the withdrawal of the subventions of the coloniz-
ing powers, the shrinking of the markets, the drop in world prices for raw
materials, the spiralling prices of manufactured goods, lack of skilled labour
and, above all, internal and external subversion.
This position of weakness, exploited by certain imperialist powers, created
a permanent state of internal insecurity favourable to coups dbtat, which
have taken place in Africa at the average rate of two a year. Thus, the
universal principles which are the foundation of human rights will still be
seriously questioned. The idea of giving them a context compatible with
economic and social development and with political stability quickly occurred
to leading African statesmen. As Jean-Paul Masseron emphasized, The
leading states-men of Africa have a tendency to sacrifice individual liberties
in order to safeguard national independence. Citing Lavroff and Peisen,
the author continues: Development comes before liberty.
The same remark was made by M. Jeol: l7 In the following years, however,
national legislatures drafted new laws which considerably limit the scope of
constitutional principles in this field. Thus, associations must not only be
declared but they must also be authorized by the executive; meetings are
severely controlled; the regime of political parties tends to favour the gov-
ernmental party, which is often the only party; freedom of the press has
severe restrictions; individual security is endangered by many emergency
laws concerning State security. Property is severely limited in the public
interest or the national interest.
At the same time, the legislator made economic and social rights much
more real through the progress of labour law and social security and the
partial codification of civil law. Whereas the classical rights so prized in the
liberal democracies are undergoing considerable restrictions for the benefit
of State power, economic and social rights, on the other hand, are developing
and it is to that development that the authors of African Constitutions no
doubt refer when they describe their democracy as social. Finally, it should
be added that there exists a considerable gap between the letter of the law
and its application by governments, which is practically beyond the control of
the parliaments. Thus, judicial review as foreseen by African Constitutions
takes on an increased importance.
No pretext was overlooked in order to adapt the interpretation of the
Universal Declaration of Human Rights. Very few countries escaped this
tendency, especially since the realities of other continents provided Africans
with a rationalization for a clear conscience. As Rene Cassin has empha-
sized, No country, not even the most advanced, can pride itself on fulfilling
all the Articles of the Declaration. Sean McBride, then Secretary-General of

the International Commission of Jurists, wrote: The evidence shows that
the primacy of the rule of law is not fully respected throughout the world; our
Commission must also direct its attention to areas of the world where it is too
easily assumed that the rule of law prevails.
The African governments, which knew these facts, interpreted them in
such a way as to justify the infringements required inevitably by the necessi-
ties of unity, prosperity and stability. The Declaration itself furnishes an
excuse, first of all, in its Preamble which states that this Universal Declara-
tion of Human Rights is proclaimed as a standard of achievement and then
in its Article 29 which states: Everyone has duties to the community in
which alone the free and full development of his personality is possible. This
prescription pleased them, as it conforms to the African conception of law.
Toward a new approach to the issue of human rights

At the Congress organized by the International Commission of Jurists in
New Delhi in January 1959, it was specified that the rule of law is a dynamic
concept for the expansion and fulfillment of which jurists are primarily respon-
sible and which should be employed not only to safeguard and advance the
civil and political rights of the individual in a free society, but also to establish
social, economic, educational and cultural conditions under which his legiti-
mate aspirations and dignity may be realized.
The invitation to give fresh thought to the rule of law was quickly grasped
by the Africans, who did not fail to create a sort of expanded legality on
behalf of the general interest. Sekou Toure clearly expressed this idea when
he wrote: In our Republic personal liberty is viewed from the perspective of
its practical usefulness for society.
Six years after Lagos, the International Commission of Jurists organized a
conference of Francophone African jurists at Dakar in order to take stock of
the situation. The final document of the conference, the Declaration of Dakar,
emphasized above all that there could not be any different interpretation
where the dignity of man was concerned. It stipulated that the black man
should respect the rule of law in the same way as the white man, since the
fundamental demands of the rule of law were no different in Africa from what
they were elsewhere. The jurists who met in Dakar were led to note, how-
ever, that in several fields, rights and freedoms were violated with more or
less acceptable justification.
Freedom
Slavery, compulsory labour, the absence of trade union freedoms and free-
dom of the press provide an eloquent illustration of this. Although slavery
has virtually disappeared in Africa, it continues to be tolerated in some of its
forms. Thus, the institution of the house captive exists, by virtue of which
the descendants of slaves retain their lowly status. They thus form a lower
caste, generally despised and condemned, with few exceptions, to endogamy.
A decision taken by the Cadi de Thies (Senegal) on 20 July 1957 confirms
this situation. The court had allowed the litigant to bring proof that the de
cujus was his common property, that is to say, his slave. A local notable
corroborated the claims of the applicant, pointing out that his mother had
purchased the mother of the de cujus, without her freedom ever having
been obtained. The Cadi decided that the applicant should inherit the assets
left by the de cujus (his property), referring to local Islamic custom. This
decision was reversed by a higher court in the interests of public order. It
nonetheless provides an illustration of the survival of the institution of the
house captive.
The rule of law

The principle of lawfulness is not always respected in Africa. The judiciary,
which guarantees that principle, is reduced to the rank of a service. There
is to be found in several speeches a statement to the effect that as the law is
an expression of sovereign power, those invested with that power, that is to
say, the people or its legitimate representatives, should be able to eliminate
it. Sekou Toure defined Guinean law as the product of our own manifold
needs in that it expresses in the reality of its application the value of our
civilization and in that it is in conformity with the object of our revolution.
Speaking of the magistrates, he writes: The magistrates. . should embody
and express the social morality of the nation, for each of their acts is interpre-
ted by the people, not in accordance with a particular provision of the Penal
Code or a particular consequence of the procedure, but solely in the light of
its own social and spiritual conceptions and its political and moral aspirations.
In several countries the effect of there being a single party in power is that
the decisions taken by that party are considered to be superior to laws and
regulations. No act of a public character, wrote Sekou Tour& will be
adopted in the future without the authorization of the Party. Almost all the
constitutions allow the executive to take emergency measures as required by
circumstances when institutions are threatened.
Freedom of employment
By and large, the public authorities consider that the principle of freedom
of employment does not preclude the obligation to take part in work in the
general interest. An ordinance issued in Mali provides that work is a duty.
Thus, in the framework of civil obligations, human investment or work in the
general interest, the citizens of the African countries are often invited to take
part in what, in the absence of exceptional circumstances justifying it, may
be regarded as compulsory labour. On this point, the jurists meeting in

Dakar expressed their views as follows: Freedom of employment may, in
exceptional circumstances, be compatible with the obligation on the part of
the citizen to perform work from which he shall derive fair profit.
This being so, everything depends on the way in which the notion of ex-
ceptional circumstances is understood. A restrictive interpretation, confined
for instance to the obligation to provide assistance which weighs morally
upon every individual living in society and according to which everyones
efforts must be mobilized when the life of the community is in imminent
danger, is perfectly compatible with freedom of employment. Such an inter-
pretation is subscribed to in certain long-established States including France.
However, the work of the Conference, and more particularly that of the
first commission, provides grounds for affirming that the notion of excep-
tional circumstances must be given an interpretation which goes far beyond
the limits determined by French law. In the minds of those participating in
the Dakar Conference, the state of under-development should be considered
to be a permanent exceptional circumstance.
This interpretation clearly emerges from the Act of Dakar which con-
tains the following statement: Once free from their implications inherited
from the colonial past, the fundamental demands of the rule of law appear
clearly to be no different in Africa from those accepted elsewhere. This
cryptic statement discretely conceals the idea of a state of permanent emer-
gency which, as long as it lasts, justifies certain violations of the principle of
the rule of law. It is to be noted that the time at which the effects of the
colonial past may be reasonably considered to have become exhausted was
not specified, and indeed it would appear that it is for each individual State to
decide.
Freedom of association
As far as freedom of association is concerned, it must be recognized that it
is difficult for it to exist in countries where an institutional or de facto single
or unified party system has been imposed. In Africa the single party system
is the general rule. This system, however, is a prerequisite for the exercise of
many other rights and, in particular, the right to take part in political activi-
ties in ones own country. Just as, with a few exceptions, including Senegal,
there are no opposition parties, trade unions must give their allegiance to the
party in power. On this point, ii- is to the merit of the Dakar Declaration that
it does not mince its words: The workers freedoms and rights are but
illusory if they are not supported by a free trade union movement. It even
goes so far as to define the free trade union, specifying that it is a trade
union in no way controlled by the public authorities and open to all those who
fulfil its conditions for membership.
The right to strike

The right to strike is generally recognized, but it is regulated in such a way
that it scarcely exists, given that in most countries the exercise of that right
is subject to the government authorities not adopting a solution of concilia-
tion in regard to collective disputes. Any strike that occurs despite a decision
to adopt a solution of conciliation becomes unlawful with all the consequences
which may arise from such a situation.
Criminal proceedings
The safety of citizens is rarely guaranteed. The individual is inadequately
protected against arbitrariness on the part of the Administration. There do
not always exist regulations governing the taking into custody of detained
persons. When they do exist, the rules and provisions of the codes and laws
are often violated with impunity by the authorities of the police administra-
tion. By means of administrative internment and house arrest, even outside
periods of disturbance, unwelcome political rivals can be isolated, and those
who are subjected to such measures are seldom allowed the assistance of
counsel. The political authorities distrust common law tribunals and often set
up ad hoc courts to sit in judgment on acts already committed; this is a
form of violation of the principle nullurn crimen sine lege. The first Com-
mission of the Dakar Conference in 1967 even accepted that the creation of
emergency courts should be envisaged insofar as they are warranted by the
situation.
The right to freedom of movement

The African States have found it necessary, in order to guard against the
brain drain and the building up of a Black proletariat in Europe, the source of
countless difficulties in bilateral relations, to place restrictions on the move-
ments of their nationals.
Freedom ofthepress
In Africa, freedom of information does not exist to any greater extent than
that of association. This state of affairs is a serious handicap to the free
exercise of democracy. The press is often reduced to its simplest expression.
In many countries there exists only one daily newspaper, and it is controlled
by the party in power. If any other newspapers exist, they do not escape this
pressure. As has been said by Mr. Madeira Keita, There can be no question
of neutral journalism in Africa.lg
Development and human rights

Thus, the African governments appear clearly to have sacrificed rights and
freedoms for the sake of development and political stability. This situation
can be explained and even justified. In mobilizing the masses in order to
secure economic and social development, everyones attention is directed
exclusively towards the prospect of improved standards of living. Inaction or
idleness thus come to be regarded as an infraction and the exercise of certain
freedoms, even in the absence of any abuse, as an attack on public order.
It may be noted however, that several recent conferences in Africa have
sought to explore the difficult issues involved in the relationship between
respect for human rights and the quest for development. In July 1978 a
Colloquium on Human Rights and Economic Development in Francophone
Africa was held in Butare, Rwanda. In the course of the colloquium, consid-
erable attention was paid to the need for a new international economic order
and the colloquium concluded that a more equitable distribution of the worlds
economic power was essential to achieve economic development and to guar-
antee human rights. Since the protection of the economic rights of the indi-
vidual depends ultimately on the economic development of the society as a
whole, the colloquium assumed that the right to development itself must be
held to be a fundamental human right implicit in the guarantee of individual
economic and social rights.
The Colloquium also emphasized concepts of human rights in traditional
African societies and the necessity of ensuring that this traditional respect
for human rights be continued in the modern African state. It was not ac-
cepted that human rights was an alien notion in Africa; rather, the princi-
ple of individual rights within the framework of the legitimate concerns of the
community has long been a part of African life.
At a subsequent conference on Development and Human Rights organ-
ized by the International Commission of Jurists and the Association Senegalaise
dEtudes et de Recherches, and held in Dakar in September 1978, conclusions
were adopted which, inter alia, called for: the establishment, at the Pan-
African level, of a Convention on Human Rights; the creation of sub-regional
institutes of human rights for their promotion by information documentation,
research and the awakening of public opinion; the creation of one or several
Inter-African Commissions on Human Rights composed of independent judges
authorised to examine complaints concerning the violations of human rights;
and the creation within African States of mass organizations capable of effec-
tively defending human rights.21
Judicial organs
The judicial organs have not acquired sufficient maturity for them to be
able to carry out their natural functions in complete independence. More-
over, the control of the judiciary by the executive is leading, finally, to the
gradual abandonment of the rule of the separation of powers.
The citizens themselves do not help to ensure that the administration of
justice is improved. Even where recourse exists against the abuse of power,
it is very seldom used. The Africans consider a trial to be always subjective
and everyone has the feeling, in attacking a decision, that they are attacking
the authority responsible for it, and generally the latter reacts in the same
way. The Administration itself refuses, in some cases, to apply the decisions
of the courts until such time as a more comprehensive judicial organ reaches a
verdict, or pending a change in the law by a legislative organ which obeys the
instructions of the party and of the government.
It is perhaps this which accounts for the suspicion with which the African
leaders view jurisdictional bodies, particularly when they are international in
character. It is undoubtedly this which underlies the delay in the adoption of
an African convention on human rights. The idea was first broached at the
Lagos Conference, thanks to the insistence of Karel Vasak. The law of Lagos
declares in paragraph 4: In order to give full effect to the Universal Declara-
tion of Human Rights of 1948, this Conference invites the African govern-
ments to study the possibility of adopting an African Convention of Human
Rights in such a manner that the Conclusions of this Conference will be
safeguarded by the creation of a court of appropriate jurisdiction and that
recourse thereto be made available for all persons under the jurisdiction of
the signatory States. However, as noted in Part 2 of this Chapter, it was
only in 1979 that the OAU first initiated concrete steps in this direction.
Similarly, the ombudsman institution has scarcely met with much success.
Only Mauritius (Constitution of 1968), Tanzania (Constitution of 1965) and
Zambia (Constitution of 1973) have set up and put into operation genuine
systems of supervision of the ombudsman variety. And except for Senegal,
few African States have set up a permanent committee on human rights. It is
also noteworthy that, in January 1979, the cornerstone was laid for the Dakar
Institute of Human Rights and Peace, the first human rights institute on the
African continent.
Private bodies
Associations working for the public good which could assist in establishing
a better legal system are not tolerated. And yet they might at least have
been able to popularize the means of struggling against arbitrariness and to
ensure, even directly, if necessary, the defense of their members interests.
Conclusion
The restrictions placed on the recognition of human rights and on the
application of the rules governing them are certainly not peculiar to underde-
velopment. History reveals that the non-universalistic conception of human

rights has long prevailed, and still prevails, in Africa. This conception has
been used to challenge the human aspects of those rights or to question
whether they are truly rights in the legal sense. In the past, and still today,
the universal application of human rights has been denied by dehumanizing
peoples, races and groups. Such was the fate of the slaves, the colonized
peoples, the Indians and the Blacks. Even today the colour of ones skin can
prevent one from having the right to human dignity .
In addition, at any time, in any place, those organs entrusted with the
responsibility of government are seen to benefit, on certain occasions, from a
margin of discretion which escapes all control and by virtue of which some of
their acts, since they are directly attached to their functions, are, a priori,
considered to be legitimate. This tolerance has given rise to the well-known
theories concerning discretionary powers, acts of government and exceptional
circumstances.
What is more, even in homogeneous societies where the universalism of
the concept man is not contested, the scope of human rights is limited
according to the period and circumstances. Generally this is a reflection of the
level of the society concerned and of the ideology of those in power, but
sometimes it reveals simply a state of crisis.
And Africa, in fact, is undergoing a crisis. For this reason, one should not
despair either of its leaders or of its people. In the long run, they will tend
asymptotically towards that ideal common to all mankind: the Universal
Declaration of Human Rights.
2. THE PLACE OF HUMAN RIGHTS IN THE CHARTER OF THE

ORGANIZATION OF AFRICAN UNITY by Birame Ndiaye
The Charter of the Organization of African Unity (OAU) does not appear
to attach a particular significance to human rights although they are referred
to in several articles. However, this approach cannot readily be criticized, in
view of the the fact that the constitutional instruments of the other regional
organizations and the United Nations also contain relatively few references
to human rights. In general, the tasks of constructing a system for the
promotion and perhaps also for the protection of human rights has been
performed by means of organizational practice, sometimes backed by a bind-
ing legal instrument. In the case of the OAU, however, most of the efforts of
that Organization which represents the African continent have focused upon
the right of peoples to self-determination and the struggle against racial
discrimination. It is only since 1979 that serious efforts have been undertaken
by the OAU itself to establish a formal human rights machinery.
There is no doubt that exercise of the right of peoples to self-determination,
guaranteed by Article 1, paragraph 1 of both Human Rights Covenants, is a
prerequisite for the implementation of human rights. As J. Salmon has writ-

ten z2 The genuine and fundamental problem, however, was that there can
be no question of human rights for those who belong to a people which is
subjugated and which is refused the right to be itself. And Salmon adds:
Whatever the case, recent developments, texts such as resolution 1514 (XV)
on decolonization and resolution 2625 (XXV) on friendly relations make it
undeniable today that the right of peoples to self-determination is recognized
as a right and forms a part of international law. The idea had previously
been explored by Chaumont. 23He cogently concluded as follows: It is not by
chance that in the resolutions of the United Nations General Assembly the
right of peoples to self-determination is set forth as the first set of rights. The
corollary to this idea is that man should not feel himself to be an alien or
estranged in his own community, in which alone (according to Article 29 of
the Universal Declaration) the free and full development of his personality is
possible. In other words, a people is but an inert mass unless it is composed of
individuals in the sense of Article 29. There is a profound bond between the
nations, the people and the individual person. It is this which makes it neces-
sary to proclaim the right of peoples to self-determination and, at the same
time, to prohibit racial discrimination. Those who framed the Addis Ababa
Charter learned from this lesson; it has been taken into consideration by the
OAU in its practice.
Was it right, however, for the Organization of African Unity to have this
dualistic and hierarchical conception which created legal obligations in re-
spect of the right of peoples to self-determination and to the prohibition of
racial discrimination, but which, after formally recognizing other rights, made
its Member States solely responsible for their implementation. Whatever the
answer, the days of OAU neglect of the broader human rights picture appear
to be over. In addition to actions taken by the Organization in the late 1970s
in relation to specific human rights problems, the Assembly of Heads of State
and Government of the OAU decided in July 1979 to organize as soon as
possible an expert meeting to prepare a preliminary draft of an African
Charter on Human and Peoples Rights providing, inter alia, for the estab-
lishment of bodies to promote and protect human and peoples rights.24 The
same meeting also adopted a Declaration on the Rights and Welfare of the
African Child.25 These initiatives are examined further below.
(a). A global but formal recognition of human rights

There was hardly any mention of human rights in the Ethiopian draft26 of
17 May 1963 which was preferred to the Ghanaian draft and which served as a
basis for discussion. The Ethiopian draft made do, first of all, with a refer-
ence to the Charter of the United Nations in paragraph 5 of its preamble
which stated: Convinced that the Charter of the United Nations, to the
principles of which we reaffirm our adherence, affords a sound basis for
peaceful and positive co-operation among States. . Then, in Article 43, it
dealt with the problem of the compatibility of the OAU and the UN. Accord-
ing to this article, the Member States agree that none of the provisions of the
Charter shall be understood or interpreted as impairing the undertakings or
other rights and obligations contracted by the Member States of the Organi-
zation of African Unity by virtue of the Charter of the United Nations.
No doubt the text submitted by the Government of the Negus contained
general and vague provision which could be interpreted as establishing
human rights in whole or in part. This is true for instance of paragraphs 3, 4
and 5 of the preamble:
Firmly resolved to safeguard the hard-won independence as well as the
sovereignty and territorial integrity of our States and to fight against neo-
colonialism in all its forms, including political and economic intervention,
Dedicated to the total liberation of those African territories which are still
under foreign domination,
Noting the express desire of the African peoples and governments to
achieve improved living conditions for the peoples of Africa, through the
triumph of freedom. .
It is also true of Article 1, paragraph 1, which deals with the purposes of
the Organization:
To co-ordinate and intensify their collaboration and efforts to achieve
improved living conditions for the peoples of Africa.
Mention might also be made of Article 17 of the same draft, which states:
The essential purpose of the Commission shall be to increase economic and
social well-being by means of effective and close co-operation between them.
Nevertheless, it was necessary to wait for the Charter drafted by the
Special Sub-Committee of Ministers of Foreign Affairs of the Summit Con-
ference for human rights to be expressly established once and for a11.27
(i). GLOBAL RECOGNITION 0F HUMAN RIGHTS
From that time onwards human rights were established as a result both of
the provisions of the preamble of the Charter and of the purposes and princi-
ples defined therein. Moreover, the stipulations are formulated in such flexi-
ble terms as to allow for the global recognition of human rights.
The contribution of the Preamble of the Charter

The preamble of the Charter no longer contains simply a reference to the
constitutional text of the UN. It also mentions the Universal Declaration of
Human Rights as the principles to which the States parties reaffirm their
adherence. For those States, the Charter of the United Nations and the
Universal Declaration of Human Rights provide a solid foundation for peaceful
and positive co-operation among them.
From earlier paragraphs, couched in too general terms, the intention of
those who framed the Addis Ababa Charter to recognize human rights could
be inferred. In the first paragraph, it is written that it is the inalienable

right of all people to control their own destiny; in the second, it is stated that
freedom, equality, justice and dignity are essential objectives for the achieve-
ment of the legitimate aspirations of the African peoples. In the third,
denique tandem, is established, for the Member States, the responsibility to
harness the natural and human resources of the continent for the total
advancement of our peoples in spheres of human endeavour.
However, use of the expression would constitute an abuse of language if
recognition of human rights resulted solely from the provisions of the pream-
ble. It is to be noted in fact that the preambles of both internal and interna-
tional constitutional acts often have the hidden function of allowing for the
reconciliation of divergent and even seemingly irreconcilable conceptions. In
the case of the preamble of the French Constitution of 1946, Burdeau,zs in his
Treaty on political science, recalled that compromise proved to be doubly
necessary: on the one hand, between those who supported the liberal ideas of
1789, who would have been content to make a few minor changes in the
august text without altering its spirit, and those who wished to give the
Declaration a more pronounced progressive character and, on the other hand,
between those who regarded the rights set forth as having an absolute char-
acter and who consequently wished to protect them against any interference
on the part of the legislature, and the Marxists who, contending that they
had a relative character, sought to prevent those rights from being paralyzed
by imperative texts. The UN, notwithstanding the provisions of its pream-
ble, did not fail to seek more operative instruments by proceeding to draft
the Universal Declaration of Human Rights. Moreover, the shortcomings of
that instrument, related to both its legal nature and to its content, were to
make it necessary to prepare the two Covenants, together with other in-
struments. In other words, rights may be enshrined in a preamble but not
effectively established. In the case of the OAU, the formulations noted ear-
lier give no indication of any desire on the part of those who drafted them to
create a rule of positive law. This is important, for as Burdeau has written,2Y
Declarations, preambles and ideological provisions of constitutions can no
longer today be considered as each forming a whole, the parts of which,
without distinction, have the same legal force. A distinction must be made
between that which is a rule of positive law and that which is a programme or
directive. Texts of this kind have the character of positive law on account
of the fact that for them to be applied, they do not require any change to be
made in existing law; they record a legal situation the content of which
immediately imposes itself. . . It is certain that such characteristics are
presented by the provisions of the preamble and those of the Universal
Declaration or the Charter to which the preamble under consideration refers
only very generally.
The fact remains that the stipulations of the preamble of the Addis Ababa
Charter expressed an ideological function which respects human rights. More-
over, they do not exist in isolation but are supported by those contained in
the paragraphs regarding the purposes and principles of the Organization.
Human rights according to the purposes set forth in the Charter

The purposes assigned to the OAU by its Member States contain an ex-
plicit reference to human rights, as does the preamble of the Charter, in the
form of a mention of the Universal Declaration. According to Article II,
paragraph c), one of the purposes of the Organization shall be to promote
international co-operation, having due regard to the Charter of the United
Nations and the Universal Declaration of Human Rights. Paragraph b) of
the same article provides that one of its purposes shall be to co-ordinate and
intensify their co-operation and efforts to achieve a better life for the peoples
of Africa. Paragraph d) outlaws colonialism. While it might seem to be
clearly established that the OAU intended to make it an obligation for its
members to protect human rights as guaranteed by the UN Charter and
especially those set forth in the Universal Declaration, this is far from being
so. For, without requiring that the Member States ensure the protection of
human rights in order that they be admitted as members of the club, it seems
that the Charter of the OAU would have wanted to make the assurance of
such protection the basis and justification (paragraph b) of their co-operation.
However, it is difficult to see how the implementation of human rights can
be laid down as a basis for international co-operation without first of all
making it into a condition of admission, a sort of entrance fee. It is a fact,
however, that the inclusion of human rights under the heading purposes
does not entail any obligation on the part of the Member States to implement
them.
As F. Borella has written, These purposes define the powers of the
Organization which are formulated restrictively, thus proving, if proof were
needed, that the dogma of State sovereignty was not called in question at
Addis Ababa. The Organization is competent to co-ordinate and harmonize
the general policies of its Member States, in particular in the following spheres:
Article II then lists all the activities of a modern State, except in respect of
the central nucleus of the concept of State (constitutional and administrative
organization, law and police). As is seen, this central nucleus relates to a
large extent to human rights. The fact that it is excluded confirms that
tendency on the part of Third World countries in general to continue to
honour the dogma of sovereignty, at least in its positive aspects. The allusion
made here to human rights is no doubt of greater value than that of a clause
of style; it cannot be reduced to a simple reference to the Universal Declara-
tion, and it cannot be regarded as entailing an obligation for the Member
States. If it could be, it would have been included among the legal and
political principles which the Member States undertook to implement in ac-
cordance with Article VI of the Charter which states: The Member States
pledge themselves to observe scrupulously the principles enumerated in Ar-

ticle III of the present Charter.
Human rights in the principles set forth in the Charter

Not only is there no mention of human rights in the principles set forth,
apart from the right of peoples to self-determination, but neither is there
mention of the question of co-operation among States. However, the rule of
non-interference is vigorously affirmed, as is easily understandable, for, as
Borella has written,32 account must be taken of the fragility of the African
States, the artificial character of which must be camouflaged by the perma-
nent affirmation that they exist and that they possess exclusive jurisdiction
over their populations and their territories. But it goes without saying that
one does not promote the protection of human rights while laying emphasis
on the exclusive domain of control of each separate State.
The right of peoples to self-determination is confirmed by the provisions
enumerating the principles of the Organization of African Unity. But at the
same time a dualistic conception emerges: on the one hand, the right of
peoples to self-determination and, on the other hand, all other human rights.
This conception is not founded solely on the fact that the implementation of
the right of peoples to self-determination is a prerequisite for the protection
of human rights, rather it assigns importance only to that right.
The conception of the OAU Charter in the matter of human rights is not
only dualistic but also preferential and selective, for whereas the Member
States are obliged to respect the right of peoples to self-determination, no
such obligation exists in respect of other human rights. It is obvious that such
a conception exonerates the Member States of the OAU from any interna-
tional obligation in regard to the implementation of those rights. Moreover,
this interpretation is supported by the fact that the Charter does not provide
for any system for the promotion or protection of human rights. As a result,
recognition of human rights in general is purely formal.
(ii). FoRMAL RECOGNITIONOF HUMAN RIGHTS
It is no doubt desirable for a constitutional text not to be too rich in details:

sparing as it is in this respect, the Charter of the OAU conforms to the
established rules. All the same, it precisely lays down the purposes and
principles of the Organization and rigorously describes its institutions. Arti-
cle XX of the Charter, concerning the specialized Commissions, contains no
mention of a commission on human rights. The list which it provides, how-
ever, is not exhaustive. Consequently, the omission is not irreversible even
though, as it stands, one may regret the political character of the commis-
sions under Article XXI.
The economy of Article XX

Under the terms of Article XX, The Assembly shall establish such Spe-
cialized Commissions as it may deem necessary, including the following:
1. Economic and Social Commission; 2. Educational and Cultural Commis-
sion; 3. Health, Sanitation and Nutrition Commission; 4. Defense Commis-
sion; 5. Scientific, Technical and Research Commission.
Of course, the fact that this initial list did not include a commission on
human rights is still of significance as regards the wishes of the African
States. Article 68 of the Charter of the United Nations is formulated in more
general terms: The Economic and Social Council shall set up commissions in
economic and social fields and for the promotion of human rights, and such
other commissions as may be required for the performance of its functions.
It bears witness to greater consideration for human rights. All the same, the
breach opened by Article XX of the Charter of the OAU could have provided
a means of making up for that omission. It is revealing, however, that none of
the amendments relating to Article XX have given rise to the establishment
of a commission on human rights. On the basis of Article XX, a Conference of
Heads of State established two new commissions in 1964: l.the Commission
of Jurists (resolution AHG/4-1); 2,the Commission of Communications (reso-
lution AHGIBO-1).
Moreover, these new specialized commissions were short-lived. In 1966 the
Conference of Heads of State and Government decided to dissolve the Com-
mission of Jurists and to reduce the number of Specialized Commissions from
six to three, viz: l.the Economic and Social Commission, incorporating the
Commission of Communications; 2.the Educational, Scientific, Cultural and
Health Commission, incorporating three former Commissions: the Educa-
tional and Cultural Commission, the Health, Sanitation and Nutrition Com-
mission and, lastly, the Scientific, Technical and Research Commission; 3.the
Defense Commission which retains its original structure without change.33 In
addition, the Conference decided to adopt a recommendation by virtue of
which the Specialized Commissions must meet once every two years.
The political character of the prescribed commissions

Article XXI which provides for the membership of the Specialized Com-
missions prescribed in Article XX imposes a political character on them.
Each Specialized Commission referred to in Article XX shall be composed of
the Ministers concerned or other Ministers or Plenipotentiaries designated
by the governments of the Member States.
The tendency to give greater legal value to human rights cannot, however,
be maintained nor have all the anticipated effects unless competent organs
are established, for purposes either of promotion or protection, composed of
independent persons, chosen on the basis of their qualifications. This re-

quirement must be met if the interests of an organization are to take prece-
dence over those of its Member States. For while the relations between law
and politics are inextricable at the domestic level, they are even closer and
more intense at the international level.
And, while the relations between international law and politics are, as a
general rule, deep-seated, they are even more so when human rights are
involved. There is in fact a quantitative and qualitative relationship between
the superstructure of a State and the human rights which it will accept to
guarantee at the international level, so deep-seated is the relationship be-
tween States and human rights. This being so, there is a pressing need to
remove the political character of international bodies specializing in human
rights. And the least that can be said is that those who established the
Charter of the Organization of African Unity, without perhaps giving any
particular thought to it, placed an obstacle in the way.
(b). The human rights practice of the OAU

In almost two decades of existence the nature and extent of the OAUs
concern for human rights have steadily evolved. For the first fifteen years or
so of its existence it did not appear to have been unduly concerned with
human rights except when denouncing the violation of such rights in the
former Portuguese colonial territories, Rhodesia, Namibia and the Union of
South Africa.
No doubt the Charter of the Organization provided small incentive for it to
do so. However, international organizations are governed by their own dy-
namics. Their practices are almost never in conformity with their constitu-
tional texts. Any revision of those texts is too fraught with political implications
and, on this account, very seldom occurs.
It is a fact today-and this is corroborated by the Opinion of the Interna-
tional Court of Justice regarding the expenditures of the United Nations and
Article 5 of the Vienna Convention on the Law of Treaties-that an interna-
tional organization, by virtue of its practice, defines rules of common law. It
is to be deduced from this that the wording adopted corresponds to a concern
not to be confined to what is contained in the constitutional act, but also to
take into account that which has emerged from practice.
In the original version of the present chapter, written in 1976, the present
writer observed that the practice of the OAU has proved to be even less
inspired than its Charter. Expressing it metaphorically, one might say that it
honours the pedestal but does not care about the statue, which is passed over
in complete silence: not a single resolution, not a single recommendation, not
a single declaration.
Writing in 1981 it is possible to distinguish two facets of the evolution of
the OAUs human rights efforts. In the first place, the Organization has
taken a number of steps to bring the practice of apartheid to an end once and
for all. To that end: resolutions have been adopted, manifestos have been
issued, an institute has been established, a Committee of Liberation has been
set up and co-operation with the UN with regard to the situation in southern
Africa has been extensive.34 In the second place, the OAU has begun the
process of establishing a Human Rights Commission and of adopting a com-
prehensive human rights charter.
(i). HUMANRIGHTS:AMEANSOF~ALLINGTHECOLONIALPOWERSTOTASK
Human rights undoubtedly constitute at present an effective weapon against

colonialism-especially when the colonizing power has not taken the precau-
tion of providing for assimilation, when that power openly establishes and
supports apartheid.
All the former French, British and Portuguese-speaking colonial territo-
ries in Africa are now subjects of international law. The major part of Africa
is independent or is recognized to be worthy of freedom. The Declaration on
the Granting of Independence to Colonial Countries and Peoples eloquently
reflects international law in the matter. The main point of it is the solemn
proclamation of the necessity of bringing to a speedy and unconditional end
colonialism in all its forms and manifestations. The subjection of peoples to
alien subjugation, domination and exploitation constitutes a denial of funda-
mental human rights, is contrary to the Charter of the United Nations and is
an impediment to the promotion of world peace and co-operation. All peoples
have the right to self-determination. . . .
This declaration is supported by a series of pre-existing or subsequent
instruments, of varying legal force, but all with the goal of unconditionally
condemning colonization as a system of relations between peoples. Such is
also the goal of the Charter, or at least of its first article, devoted to the
purposes of the Organization; and of the first articles of the Covenants on
Human Rights, and the Declaration on Friendly Relations. To challenge a
State on the basis of these documents is to seek, with much likelihood of
success, to submit it to universal censure. And the Portugal of Salazar and
Caetano understood this very well when they tried to conceal the colonial
status of Portugals African provinces. The Republic of South Africa, no
doubt falsely but not without malice, rejects all charges that it has any
colonial designs in Namibia.
Admittedly, calling the colonial powers to task in the name of human rights
is a judicious way of using the ways and means afforded by contemporary
international law to put an end to colonialism in Africa. In this, the practice of
the OAU is constant. Moreover, in order to give added force to that practice,
the OAU has established certain structures.
At their first historic meeting in Addis Ababa in 1963, writes the Admin-
istrative Secretary-General, 35one of the first acts of the Heads of State and
Government was to give material expression to their concern for the total
liberation of the continent by establishing the Co-ordination Committee for
the Liberation Movement of Africa to co-ordinate and harmonize the struggle

of national liberation movements and to direct and co-ordinate assistance to
the freedom fighters in order to allow them to recover their confiscated
independence and sovereignty. This Committee, endowed with a special
fund, is the subject of special attention. In 1969 again, the Conference of
Heads of State and Government decided to designate a Committee to study
the terms of reference, structure and composition of the Co-ordination Com-
mittee for the Liberation Movement of Africa.
The activities of the Organization of African Unity in respect of the strug-
gle against colonialism led it at the same time to concern itself with refugees,
the number of whom was attaining alarming proportions. In Africa, the
refugee phenomenon was not linked exclusively to the national liberation
struggles in South Africa, Rhodesia, Angola, Mozambique, Guinea-Bissau
and South West Africa. As is rightly pointed out by the Administrative
Secretary-General, it is also linked to the internal crises undergone by cer-
tain independent African States.37 Nevertheless, the struggle against colo-
nialism in Africa is one of the causes of the phenomenon. The OAU set up, in
February 1964, an ad hoc commission whose recommendations in this field
constitute the Charter of the Organization.
In regard to these developments, one can consequently agree with Borella%
when he writes: The liquidation of colonialism in Africa is probably the best
known substantial principle of African law. The application of this principle
has been one of the most important tasks of the OAU, through its Liberation
Committee.. .The questions of Southern Rhodesia (Zimbabwe), the Union
of South Africa, and Namibia (South West Africa) are regularly included on
the agenda of the Council and of the Conference. It is to be added that this
principle is founded on the absolute incompatibility which exists between
colonialism and respect for human rights.
At the same time as fighting colonialism, and still in the name of human
rights, the OAU has also made intense efforts to eradicate the policy of
apartheid from the continent.
Forcing States to abandon the policy of apartheid in the name of human

rights
It is no doubt easier, or at least less dangerous, to combat colonialism in
the name of, and with the assistance of, human rights than to combat apart-
heid by virtue of, and with the aid of, those same rights. Can one ever be sure
that one has swept in front of ones own door, as Voltaire recommended?
Virally has wisely pointed out that ensuring that the rights established on
behalf of individuals are respected will appear to be an abstract and hardly
attractive objective to a government, especially when it runs the risk of
jeopardizing its good relations with another government. To this will be
added an elementary rule of prudence: the government under attack can
--___^-.--I^._
- _.._-
always retaliate and, in turn, accuse its accuser of the same crime as that for
which it is being reproached. Nevertheless, the Organization of African
Unity has embarked on this path, but not without first of all taking certain
precautions. In adopting the Lusaka Manifesto, the Addis Ababa Organiza-
tion managed to protect not only its left flank but also its right flank. This
particularly well-drafted Manifesto was adopted by the Heads of State and
Government of East and Central Africa meeting in conference at Lusaka
from 14 to 15 April 1969. It was to meet with tremendous success. At the
24th session of the UN General Assembly, the Manifesto was adopted (113
for, 2 abstentions, 2 against: South Africa and Portugal).
In this text of world importance, the African States renewed their faith in
human rights: By this Manifesto we wish to make clear, beyond all shadow
of doubt, our acceptance of the belief that all men are equal and have equal
rights to human dignity and respect, regardless of colour, race, religion or
sex. We believe that all men have the right and duty to participate as equal
members of the society, in their own government. We do not accept that any
individual or group has any right to govern any other group of sane adults,
without their consent. . By this Manifesto they rejected, in the name of
human rights, all forms of discrimination resulting from the system of apartheid.
Moreover, the Lusaka Manifesto achieved more than one purpose since, in
addition to the above proclamation, it eliminated the charge of anti-racist
racism on the part of the Africans; above all, it did a splendid job of demolish-
ing all the excuses founded on the non-implementation of human rights by the
Africans themselves. By a masterly stroke, the African States declared as
follows in the text: We recognize that at any one time there will be, within
every society, failures in the implementation of these ideals. We recognize
that for the sake of order in human affairs, there may be transitional ar-
rangements while a transformation from group inequalities to individual equal-
ity is being effected. But we affirm that without an acceptance of these
ideal-without a commitment to these principles of human equality and
self-determination-there can be no basis for peace and justice in the world.
None of us would claim that within our own States we have achieved that
perfect social, economic and political organization which would ensure a rea-
sonable standard of living for all our people and establish individual security
against avoidable hardship or miscarriage of justice. This wonderful passage
expresses an unassailable theory of the international implementation of human
rights, and of the necessity to modulate the content of these rights, once one
steps out of the natural framework of their protection, namely the States. It
thus enabled the African States to secure a condemnation of the policy of
apartheid, in the name of human rights, even though they themselves are a
long way from fully meeting the requirements of these rights.
Nevertheless, and even though, for very good reasons, the positions of
those who support apartheid have been continuously and irreversibly un-
dermined, the fact remains that those in favour of such a policy do not fail to
point out that if African workers continue to go to South Africa, it is because

the atmosphere there is not so infernal as, or at least no more infernal than, it
is elsewhere. Whatever the case, Africans must show greater respect for the
rights of Africans, if they wish to preserve their international prestige.
(ii). THEPRESENTCONCEPTIONOFTHEOAUINTHEMATTEROFHUMANRIGHTS
Until recently the OAUs practice in the matter of human rights has been
clearly inadequate. Admittedly, to have contributed, to a small extent, to the
liberation of the colonized African territories, is in itself an invaluable achieve-
ment; without such liberation, the implementation of human rights is an
illusion for colonized peoples. Similarly, it is clear that the policy of apart-
heid, regardless of how it is justified, is the very denial of all the rights of the
Black peoples of South Africa and Namibia. And to have helped, by using
human rights as a means of calling the colonial powers to task, to discredit
such a policy, is again to have facilitated the realization of those rights in
regions where they were particularly suppressed.
However, one cannot justifiably claim to base ones relations on the effec-
tive implementation of human rights by a neighbouring State if, at the do-
mestic level, insofar as ones means permit, those same rights have not been
provided with the necessary guarantees. One is not necessarily exempt from
blame simply because one is neither a colonizer nor a segregationist. It is not
enough to liberate all peoples from all forms of internal and external domina-
tion. Liberation for all peoples and for man himself from all the constraints to
which human rights may be subjected must be ensured.
In reality, however, and without there being any need to compare the
G.N.P. of the Republic of South Africa with that of the Member States of the
OAU, or to confuse the colonial status of certain Africans with that of the
African States, and even less to confuse the political systems of those States
with apartheid, the fact remains that violations of identical rights are com-
mitted equally in the colonial territories and the States practising segrega-
tion and in the African States.
However, in relation to the promotion of human rights in Africa as a whole,
recent developments have occured which are of major significance. In addi-
tion to the achievement of independence by Zimbabwe in 1980 and the disap-
pearance of several dictatorial regimes in the late 1970s, the OAU itself has
acknowledged the need for comprehensive, institutionalized machinery to
give effect to the firm attachment of the Member States of the Organization
of African Unity to the promotion of respect for and protection of Human and
Peoples Rights.40 For this purpose the Assembly of Heads of State and
Government decided in 1979 to organize a meeting of highly-qualified experts
to prepare a preliminary draft of an African Charter on Human and Peoples
Rights.41 At the Groups first meeting in Dakar, a detailed draft containing 64
articles was prepared. In addition to enumerating a wide range of traditional
civil, political, economic, social and cultural rights the draft places strong
emphasis on collective rights such as: the right of peoples to self-determination;

the right of colonized or oppressed peoples to free themselves from the bonds
of domination by resorting to any means recognized by the international
community; the right to development; the right to national and international
peace and security; and the right to a generally satisfactory environment
favourable to their development.42
This draft has subsequently been considered by two further meetings of
the group held in Banjul, The Gambia. In June 1980 the OAU Council of
Ministers urged the group to complete its work in time for a final draft to be
submitted to the Assembly of Heads of State and Government, which adopted
it in June 1981.4
Also at its 1979 meeting the Assembly adopted a Declaration on the Rights
and Welfare of the African Child. The 12 paragraph Declaration provides,
inter alia, that Member States of the OAU should: review their current legal
codes and provisions relating to the rights of children; thoroughly examine
cultural legacies and practices that are harmful to normal growth and devel-
opment of the child; formulate and implement programmes in the field of
health, nutrition and education as part of national development plans with a
view to making these services universally accessible to all children within the
shortest possible time; give priority to the most deprived and vulnerable
children, paying particular attention to disabled children in the expansion of
essential services; and expand day-care facilities with priority to the most
needy and economically disadvantaged families. Other provisions of the Dec-
laration relate to: the needs of refugee and displaced children; the importance
of participation in the planning and management of basic services programmes
for children; and the need to preserve and develop African arts, languages
and culture.
Another major development was the holding, in Monrovia in September
1979, of a UN Seminar on the Establishment of Regional Commissions on
Human Rights with Special Reference to Africa. The seminar, in which the
OAU participated actively, adopted the Monrovia proposal for the setting
up of an African Commission on Human rights.44 The proposal, which con-
tained a possible model for an African commission on human rights, was
submitted, through the UN Secretary-General, to the OAU for consideration.
The reaction of other States

The credibility of the OAU in the matter of human rights may be expected
to decline to a considerable extent if the discrepancy between the rights
continually proclaimed and honoured in words and the rights effectively
protected persists. Those other States which are at present outlawed by
international society will then escape, in whole or in part, from universal
censure.
The reaction of the nationals of the Member States of the OAU

Although citizens are often unaware of the real factors which determine
foreign policy, the ways in which that policy is justified always influences
their reactions, be it positively or negatively. Since, for a long time now, they
have been learning to follow the example of their leaders, the nationals of the
Member States of the OAU could become particularly keen to preserve their
rights.
Taking into consideration both reactions within States and reactions out-
side them, there are grounds for thinking that radical changes are now in the
making in respect of the promotion and protection of human rights in Africa.
NOTES
1. Journal ofthe International Commission of Jurists, 1961, Vol. III, No. 1, p. 9.
2. The concept of race, Diogenes, 1967, No. 59, p. 117.
3. Rolland et Lampue, Precis de droit des pays doutre-mer, p. 275.
4. Ibid., p. 271.
5. Jean-Bernard Marie, La Commission des droits de lhomme de LONU, Pedone,
Paris, 1975, p. 9.
6. The concept of race, Diogenes, 1967, No. 59, p. 117.
7. Only two black African countries were members of the international community at
that time.
8. Fortieth Francophone Medical Congress, Dakar, 1975.
9. The right to life was protected not only by the prohibition against killing but also by
the obligation to provide those who did not have any means of subsistence with that which
was necessary to ensure their survival.
10. Roman quiritarian property, as far as land and livestock were concerned, was gener-
ally unknown in Africa. Such property belonged to the community.
11. Karel Vasak, Les droits de lhomme et lilfrique, Revue belge de droit interna-
tional, 1967, No. 2, pp. 459-478.
12. Les constitutions africaines, Vol. I, p. 18 and Vol. II, p. 30, Pedone, Paris
13. . We felt that this was a subject of such tremendous importance that the human
rights should not be left hidden here and there in a legal maze, and we insisted on having a
special chapter of our Constitution devoted to the exposition of those fundamental human
rights.
14. Jean-Bernard Marie, op. cit., p. 22.
15. Jon Woronoff, Organizing African Unity, The Scarecrow Press Inc., 1970, p. 169.
15a. Jean-Paul Masseron, Le pouvoir et la justice en Afrique noire francophone et a
Madagascar, Pedone, Paris, 1966, p. 43.
16. Les constitutions africaines, op. cit.
17. Droit public africain, Cahiers de lIZAP, Paris, 1967, p. 107.
18. Unesco Courier, January 1968.
19. Quoted by Jean-Paul Masseron, Le pouvoir et lajustice en Afrique noire francophone
et a Madagascar, Pedone, Paris, 1966, p. 42.
20. See H. Hannum, The Butare Colloquium on Human Rights and Economic Develop-
ment in Francophone Africa: A Summary and Analysis, Universal Human Rights, Vol. 1,
No. 2, 1979, pp. 63-88.
21. See Revue Senegalaise de Droit, Numero special, December 1977, No. 22, (1978),
255~.
22. J. Salmon, Rapport sur le droit des peuples a disposer deux-memes, Annales de la
FacultB de droit et des sciences 6condmiques de Reims, 1974, published by the ASERJ, p.
268.
23. Ch. Chaumont, Cours general de droit international public, 1970, RCADI, 1970, Vol.
I, p. 412.
24. AHGIDec.115 (XVI), para. 2. See UN doe. A/34/552 (1979), Annex II, pp. 92-93.
25. AHG/ST.4 (XVI). See UN dot. A/34/552 (1979),Annex II, pp. 81-83.
26. Ethopia, Draft Charter of the Organization of African States, Corn. Ii17 May 1963.
Acts of the Summit Conference of independent African States, Vol. I, Section 1, Addis
Ababa, May 1963.
27. Acts of the Summit Conference of Independent African States, Vol. I, Section 1,
Addis Ababa, Confidential summit, CIASiCOMireport 1-24 May 1963, p. 8.
28. G. Burdeau, Trait6 de science politique, 2nd edition, LGDJ, Paris, Vol. IV, Le statut
du pouvoir dans IEtat, p. 135.
29. G. Burdeau, op. cit., p. 134.
30. Francois Borella, Organisations internationales regionales, Le rkgionolisme africain,
1964, AFDI, p. 854.
31. Art. II. 1. The Organization shall have the following purposes:
(a) to promote the unity and solidarity of the African States;
(b) to co-ordinate and intensify their co-operation and efforts to achieve a better life
for the peoples of Africa;
(c) to defend their sovereignty, their territorial integrity and independence;
(d) to eradicate all forms of colonialism from Africa;
(e) to promote international co-operation, having due regard to the Charter of the
United Nations and the Universal Declaration of Human Rights.
2. To these ends, the Member States shall co-ordinate and harmonize their
general policies, especially in the following fields;
(a) political and diplomatic co-operation;
(b) economic co-operation, including transport and communications;
(cl educational and cultural co-operation;
(d) health, sanitation and nutritional co-operation;
(e) scientific and technical co-operation;
(f) co-operation for defense and security.
32. F. Borella, Le systeme juridique de lOUA, AFDI, 1971, p. 236.
33. See OAU doe. CM/272 (1968) (Part I) para. 32. The same document notes the irregu-
larity with which meetings of the various Specialized Commissions occurred in the early
years of their existence.
34. With regard to the latter see UN dot. A1351446(1980).
35. Introductory note to the report of the Administrative Secretary-General to the ninth
regular session of the Conference of Heads of State and Government, Rabat, June 1972, p.
38.
36. Conference of Heads of State and Government, sixth regular session, Addis Ababa,
September 1969, AHG/Dec. 36 (VI).
37. Introductory note to the report of the Administrative Secretary-General to the
ninth regular session of the Conference of Heads of State and Government, Rabat, 1972,
p. 64.
38. Borella, Le systeme juridique de lOUA, AFDI, pp. 244-245.
39. Virally, Lacces des particuliers a une instance internationale: la protection des
droits de lhomme dans le cadre europeen, Mdmoires pub&s par la Facultd de droit de
GenBve,no 20, 4bme journee juridique, 10 Octobre 1964, p. 75.
40. Resolution of the OAU Council of Ministers, CM/Res. 792 (XXV)(1980). See UN dot.
A/35/463, Annex I, p. 39.
41. AHGIDec. 115 (XVI). See UN dot. A/34/552 (1979), Annex II, pp. 92-93.
616 Kkba MBaye and Birame Ndiaye
42. See OAU doe. CABILEGI67/3/Rev. 1 (1979), reprinted in Bulletin of Peace Proposals
(Oslo), Vol 11, No. 4, 1980; and OAU doe. CM11068(XXV)(1980).
43. CMiRes. 792 (XXXV) q. cit..
44. UN doe. STIHRISER.AI4 (1979), Annex I, pp. 17-20.
3. AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS
PREAMBLE
The African States members of the Organization of African Unity, parties

to the present Convention entitled African Charter on Human and Peoples
Rights,
Recalling Decision 115 (XVI) of the Assembly of Heads of State and Gov-
ernment at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17
to 20 July 1979 on the preparation of a preliminary draft on an African
Charter on Human and Peoples Rights providing inter alia for the estab-
lishment of bodies to promote and protect human and peoples rights;
Considering the Charter of the Organization of African Unity, which stipu-

lates that freedom, equality, justice and dignity are essential objectives for
the achievement of the legitimate aspirations of the African peoples;
Reccffiming the pledge they solemnly made in Article 2 of the said Charter
to eradicate all forms of colonialism from Africa, to co-ordinate and intensify
their co-operation and efforts to achieve a better life for the peoples of Afri-
ca and to promote international co-operation having due regard to the Char-
ter of the United Nations and the Universal Declaration of Human Rights;
Taking into consideration the virtues of their historical tradition and the
values of African civilization which should inspire and characterize their re-
flection on the concept of human and peoples rights;
Recognixing on the one hand, that fundamental human rights stem from
the attributes of human beings, which justifies their international protection
and on the other hand that the reality and respect of peoples rights should
necessarily guarantee human rights;
Considering that the enjoyment of rights and freedoms also implies the
performance of duties on the part of everyone;
Convinced that it is henceforth essential to pay a particular attention to the

right to development and that civil and political rights cannot be dissociated
from economic, social and cultural rights in their conception as well as uni-
versality and that the satisfaction of economic, social and cultural rights is a
guarantee for the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the peoples
of which are still struggling for their dignity and genuine independence, and
undertaking to eliminate colonialism, neo-colonialism, apartheid, Zionism and
to dismantle aggressive foreign military bases and all forms of discrimina-
tion, particularly those based on race, ethnic group, colour, sex, language,
religion or political opinions;
Reaffirming their adherence to the principles of human and peoples rights

and freedoms contained in the declarations, conventions and other instru-
ments adopted by the Organization of African Unity, the Movement of Non-
Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and peoples
rights and freedoms taking into account the importance traditionally attached
to these rights and freedoms in Africa;
HAVE AGREED AS FOLLOWS:
PART I - RIGHTS AND DUTIES
CHAPTER I
HUMAN AND PEOPLES RIGHTS
ARTICLE 1
The Member States of the Organization of African Unity parties to the
present Charter shall recognize the rights, duties and freedoms enshrined in
this Charter and shall undertake to adopt legislative or other measures to
give effect to them.
ARTICLE 2
Every individual shall be entitled to the enjoyment of the rights and free-
doms recognized and guaranteed in the present Charter without distinction
of any kind such as race, ethnic group, colour, sex, language, religion, politi-
cal or any other opinion, national and social origin, fortune, birth or other
status.
ARTICLE 3
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
ARTICLE 4
Human beings are inviolable. Every human being shall be entitled to re-
spect for his life and the integrity of his person. No one may be arbitrarily
deprived of this right.
ARTICLE 5
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade, tor-
ture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
ARTICLE 6
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be arbitrar-
ily arrested or detained.
ARTICLE 7
1. Every individual shall have the right to have his cause heard. This
comprises:
a) The right to an appeal to competent national organs against acts
violating his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in force;
b) the right to be presumed innocent until proved guilty by a competent
court or tribunal;
c) the right to defence, including the right to be defended by counsel of
his choice;
d) the right to be tried within a reasonable time by an impartial court or
tribunal.
2. No one may be condemned for an act or omission which did not consti-
tute a legally punishable offence at the time it was committed. No penalty
may be inflicted for an offence for which no provision was made at the time it
was committed. Punishment is personal and can be imposed only on the
offender.
ARTICLE 8
Freedom of conscience, the profession and free practice of religion shall be
guaranteed. No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms.
ARTICLE 9
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.
ARTICLE lo
1. Every individual shall have the right to free association provided that
he abides by the law.
2. Subject to the obligation of solidarity provided for in Article 29 no one
may be compelled to join an association.
ARTICLE 11
Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions provided
for by law in particular those enacted in the interest of national security, the
safety, health, ethics and rights and freedoms of others.
ARTICLE 12
1. Every individual shall have the right to freedom of movement and resi-
dence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to restric-
tions, provided for by law for the protection of national security, law and
order, public health or morality.
3. Every individual shall have the right, when persecuted, to seek and
obtain asylum in other countries in accordance with the laws of those coun-
tries and international conventions.
4. A non-national legally admitted in a territory of a State Party to the
present Charter, may only be expelled from it by virtue of a decision taken in
accordance with the law.
5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion
shall be that which is aimed at national, racial, ethnic or religious groups.
ARTICLE 13
1. Every citizen shall have the right to participate freely in the govern-
ment of his country, either directly or through freely chosen representatives
in accordance with the provisions of the law.
2. Every citizen shall have the right of equal access to the public service of
his country.
3. Every individual shall have the right of access to public property and
services in strict equality of all persons before the law.
ARTICLE 14
The right to property shall be guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.
ARTICLE 15
Every individual shall have the right to work under equitable and satisfac-
tory conditions, and shall receive equal pay for equal work.
ARTICLE 16
1. Every individual shall have the right to enjoy the best attainable state
of physical and mental health.
2. States Parties to the present Charter shall take the necessary measures
to protect the health of their people and to ensure that they receive medical
attention when they are sick.
ARTICLE 17
1. Every individual shall have the right to education.
2. Every individual may freely, take part in the cultural life of his community.
3. The promotion and protection of morals and traditional values recog-
nized by the community shall be the duty of the State.
ARTICLE 18
1. The family shall be the natural unit and basis of society. It shall be
protected by the State which shall take care of its physical and moral health .
2. The State shall have the duty to assist the family which is the custodian
of morals and traditional values recognized by the community.
3. The State shall ensure the elimination of every discrimination against
women and also ensure the protection of the rights of the woman and the
child as stipulated in international declarations and conventions.
4. The aged and the disabled shall also have the right to special measures
of protection in keeping with their physical or moral needs.
ARTICLE 19
All peoples shall be equal; they shall enjoy the same respect and shall have
the same rights. Nothing shall justify the domination of a people by another.
ARTICLE 20
1. All peoples shall have the right to existence. They shall have the un-
questionable and inalienable right to self-determination. They shall freely
determine their political status and shall pursue their economic and social
development according to the policy they have freely chosen.
2. Colonize or oppressed peoples shall have the right to free themselves
from the bonds of domination by resorting to any means recognized by the
international community.
3. All peoples shall have the right to the assistance of the States parties to
the present Charter in their liberation struggle against foreign domination,
be it political, economic or cultural.
ARTICLE 21
1. All peoples shall freely dispose of their wealth and natural resources.
This right shall be exercised in the exclusive interest of the people. In no case
shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the right to the
lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised
without prejudice to the obligation of promoting international economic coop-
eration based on mutual respect, equitable exchange and the principles of
international law.
4. States parties to the present Charter shall individually and collectively
exercise the right to free disposal of their wealth and natural resources with a
view to strengthening African unity and solidarity.
5. States parties to the present Charter shall undertake to eliminate all
forms of foreign economic exploitation particularly that practised by interna-
tional monopolies so as to enable their peoples to fully benefit from the
advantages derived from their national resources.
ARTICLE 22
1. All peoples shall have the right to their economic, social and cultural
development with due regard to their freedom and identity and in the equal
enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the
exercise of the right to development.
ARTICLE 23
1. All peoples shall have the right to national and international peace and
security. The principles of solidarity and friendly relations implicitly affirmed
by the Charter of the United Nations and reaffirmed by that of the Organiza-
tion of African Unity shall govern relations between States.
2. For the purpose of strengthening peace, solidarity and friendly rela-
tions, States parties to the present charter shall ensure that:
(a) any individual enjoying the right of asylum under Article 12 of the
present Charter shall not engage in subversive activities against his
country of origin or any other State party to the present Charter;
(b) their territories shall not be used as bases for subversive or terror-
ist activities against the people of any other State party to the
present Charter.
ARTICLE 24
All peoples shall have the right to a general satisfactory environment
favourable to their development.
ARTICLE 25
States parties to the present Charter shall have the duty to promote and en-
sure through teaching, education and publicat.ion, the respect of the rights and
freedoms contained in the present Charter and to see to it that these freedoms
and rights as well as corresponding obligations and duties are understood.
ARTICLE 26
States parties to the present Charter shall have the duty to guarantee the
independence of the Courts and shall allow the establishment and improve-
ment of appropriate national institutions entrusted with the promotion and
protection of the rights and freedoms guaranteed by the present Charter.
CHAPTER II
DUTIES
ARTICLE 27
1. Every individual shall have duties towards his family and society, the
State and other legally recognised communities and the international community.
2. The rights and freedoms of each individual shall be exercised with due
regard to the rights of others, collective security, morality and common
interest.
ARTICLE 28
Every individual shall have the duty to respect and consider his fellow
beings without discrimination, and to maintain relations aimed at promoting,
safeguarding and reinforcing mutual respect and tolerance.
ARTICLE 29
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for
the cohesion and respect of the family; to respect his parents at all times, to
maintain them in case of need;
2. To serve his national community by placing his physical and intellectual
abilities at its services;
3. Not to compromise the security of the State whose national or resident
he is;
4. To preserve and strengthen social and national solidarity, particularly
when the latter is threatened;
5. To preserve and strengthen the national independence and the territo-
rial integrity of his country and to contribute to its defence in accordance
with the law;
6. To work to the best of his abilities and competence, and to pay taxes
imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his rela-
tions with other members of the society, in the spirit of tolerance, dialogue
and consultation and, in general, to contribute to the promotion of the moral
well being of society;
8. To contribute to the best of his abilities, at all times and at all levels to
the promotion and achievement of African unity.
--. -.-.--l..~-l_.^,l--_l^ -I . .._. --. -

PART II - MEASURES OF SAFEGUARD
CHAPTER I
ESTABLISHMENT AND ORGANIZATION OF THE AFRICAN

COMMISSION ON HUMAN AND PEOPLES RIGHTS
ARTICLE 30
An African Commission on Human and Peoples Rights, hereinafter called
the Commission, shall be established within the Organization of African Unity
to promote human and peoples rights and ensure their protection in Africa.
ARTICLE 31
1. The Commission shall consist of eleven members chosen from amongst
African personalities of the highest reputation, known for their high moral-
ity, integrity, impartiality and competence in matters of human and peoples
rights; particular consideration being given to persons having legal experience.
2. The members of the Commission shall serve in their personal capacity.
ARTICLE 32
The Commission shall not include more than one national of the same State.
ARTICLE 33
The members of the Commission shall be elected by secret ballot by the
Assembly of Heads of State and Government, from a list of persons nomi-
nated by the States parties to the present charter.
ARTICLE 34
Each State party to the present Charter may not nominate more than two
candidates. The candidates must have the nationality of one of the States
parties to the present Charter. When two candidates are nominated by a
State, one of them may not be a national of that State.
ARTICLE 35
1. The Secretary-General of the Organization of African Unity shall invite
States parties to the present Charter at least four months before the elec-
tions to nominate candidates;
2. The Secretary-General of the Organization of African Unity shall make
an alphabetical list of the persons thus nominated and communicate it to the
Heads of State and Government at least one month before the elections.
ARTICLE 36
The members of the Commission shall be elected for a six year period and
shall be eligible for re-election. However, the term of office of four of the
Keba MBaye and Birame Ndiaye
members elected at the first election shall terminate after two years and the
term of three others, at the end of four years.
ARTICLE 37
Immediately after the first election, the Chairman of the Assembly of
Heads of State and Government of the Organization of African Unity shall
draw lots to decide the names of those members referred to in Article 36.
ARTICLE 38
After their election, the members of the Commission shall make a solemn
declaration to discharge their duties impartially and faithfully.
ARTICLE 39
1. In case of death or resignation of a member of the Commission, the
Chairman of the Commission shall immediately inform the Secretary-General
of the Organization of African Unity, who shall declare the seat vacant from
the date of death or from the date on which the resignation takes effect.
2. If, in the unanimous opinion of other members of the Commission, a mem-
ber has stopped discharging his duties for any reason other than a temporary
absence, the Chairman of the Commission shall inform the Secretary General
of the Organization of African Unity, who shall then declare the seat vacant.
3. In each of the cases anticipated above, the Assembly of Heads of State
and Government shall replace the member whose seat became vacant for the
remaining period of his term unless the period is less than six months.
ARTICLE 40
Every member of the Commission shall be in office until the date his
successor assumes office.
ARTICLE 41
The Secretary-General of the Organization of African Unity shall appoint
the Secretary of the Commission. He shall also provide the staff and services
necessary for the effective discharge of the duties of the Commission. The
Organization of African Unity shall bear the cost of the staff and services.
ARTICLE 42
1. The Commission shall elect its Chairman and Vice Chairman for a two-
year period. They shall be eligible for re-election.
2. The Commission shall lay down its rules of procedure.
3. Seven members shall form the quorum.
4. In case of an equality of votes, the Chairman shall have a casting vote.
5. The Secretary-General may attend the meetings of the Commission. He
shall neither participate in deliberations nor shall he be entitled to vote. The
Chairman of the Commission may, however, invite him to speak.
ARTICLE 43
In discharging their duties, members of the Commission shall enjoy diplo-
matic Privileges and Immunities provided for in the General Convention on
the Privileges and Immunities of the Organization of African Unity.
ARTICLE 44
Provisions shall be made for the emoluments and allowances of the mem-
bers of the Commission in the Regular Budget of the Organization of African
Unity.
CHAPTER II
MANDATE OF THE COMMISSION
ARTICLE 45
The functions of the Commission shall be:
1. To promote Human and Peoples Rights and in particular:
a) to collect documents, undertake studies and researches on African
problems in the field of human and peoples rights, organize seminars,
symposia and conferences, disseminate information, encourage national
and local institutions concerned with human and peoples rights, and
should the case arise, give its views or make recommendations to
Governments.
b) to formulate and lay down, principles and rules aimed at solving legal
problems relating to human and peoples rights and fundamental free-
doms upon which African Governments may base their legislations.
c) co-operate with other African and international institutions concerned
with the promotion and protection of human and and peoples rights.
2. Ensure the protection of human and peoples rights under conditions
laid down by the present Charter.
3. Interpret all the provisions of the present Charter at the request of a
State party, an institution of the OAU or an African organization recognized
by the OAU.
4. Perform any other tasks which may be entrusted to it by the Assembly
of Heads of State and Government.
CHAPTER III
PROCEDURE OF THE COMMISSION
ARTICLE 46
The Commission may resort to any appropriate method of investigation; it
may hear from the Secretary-General of the Organization of African Unity or
any other person capable of enlightening it.
- l_-.-- --.-.-
COMMUNICATION FROM STATES
ARTICLE 4 7
If a State party to the present Charter has good reasons to believe that
another State party to this Charter has violated the provisions of the Char-
ter, it may draw, by written communication, the attention of that State to the
matter. This communication shall also be addressed to the Secretary-General
of the OAU and to the Chairman of the Commission. Within three months of
the receipt of the communication, the State to which the communication is
addressed shall give the enquiring State, written explanation or statement
elucidating the matter. This should include as much as possible relevant
information relating to the laws and rules of procedure applied and applicable
and the redress already given or course of action available.
ARTICLE 48
If within three months from the date on which the original communication
is received by the State to which it is addressed the issue is not settled to the
satisfaction of the two States involved through bilateral negotiation or by any
other peaceful procedure, either State shall have the right to submit the
matter to the Commission through the Chairman and shall notify the other
States involved.
ARTICLE 49
Notwithstanding the provisions of Article 47, if a State party to the pres-
ent Charter considers that another State party has violated the provisions of
the Charter, it may refer the matter directly to the Commission by address-
ing a communication to the Chairman, to the Secretary-General of the Orga-
nization of African Unity and the State concerned.
ARTICLE 50
The Commission can only deal with a matter submitted to it after making
sure that all local remedies, if they exist, have been exhausted, unless it is
obvious to the Commission that the procedure of exhaustion of these reme-
dies would be unduly prolonged.
ARTICLE 51
1. The Commission may ask the States concerned to provide it with all
relevant information.
2. When the Commission is considering the matter, States concerned may
be represented before it and submit written or oral representations.
ARTICLE 52
After having obtained from the States concerned and from other sources
all the information it deems necessary and after having tried all appropriate
The Organization of African Unity (OAU)
means to reach an amicable solution based on the respect of Human and

Peoples Rights, the Commission shall prepare, within a reasonable period of
time from the notification referred to in Article 48, a report stating the facts
and its findings. This report shall be sent to the States concerned and com-
municated to the Assembly of Heads of State and Government.
ARTICLE 53
While transmitting its report, the Commission may make to the Assem-
bly of Heads of State and Government such recommendations as it deems
useful.
ARTICLE 54
The Commission shall submit to each Ordinary Session of the Assembly of
Heads of State and Government a report on its activities.
OTHER COMMUNICATIONS
ARTICLE 55
1. Before each Session, the Secretary of the Commission shall make a
list of the communications other than those of States parties to the present
Charter and transmit them to the Members of the Commission, who shall
indicate which communications should be considered by the Commission.
2. A communication shall be considered by the Commission if a simple
majority of its members so decide.
ARTICLE 56
Communications relating to human and peoples rights referred to in Arti-
cle 55 received by the Commission, shall be considered if they:
1. indicate their authors even if the latter request anonymity,
2. are compatible with the Charter of the Organization of African Unity or
with the present Charter,
3. are not written in disparaging or insulting language directed against
the State concerned and its institutions or to the Organization of African
Unity,
4. are not based exclusively on news disseminated through the mass
media,
5. are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged,
6. are submitted within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized of the matter, and
7. do not deal with cases which have been settled by these States involved
in accordance with the principles of the Charter of the United Nations, or
the Charter of the Organization of African Unity or the provisions of the
present Charter.
ARTICLE 57
Prior to any substantive consideration, all communications shall be brought
to the knowledge of the State concerned by the Chairman of the Commission.
ARTICLE 58
1. When it appears after deliberations of the Commission that one or more
communications apparently relate to special cases which reveal the existence
of a series of serious or massive violations of human and peoples rights, the
Commission shall draw the attention of the Assembly of Heads of State and
Government to these special cases.
2. The Assembly of Heads of State and Government may then request the
Commission to undertake an in-depth study of these cases and make a factual
report, accompanied by its finding and recommendations.
3. A case of emergency duly noticed by the Commission shall be submitted
by the latter to the Chairman of the Assembly of Heads of State and Gov-
ernment who may request an in-depth study.
ARTICLE 59
1. All measures taken within the provisions of the present Chapter shall
remain confidential until such a time as the Assembly of Heads of State and
Government shall otherwise decide.
2. However, the report shall be published by the Chairman of the Com-
mission upon the decision of the Assembly of Heads of State and Government.
3. The report on the activities of the Commission shall be published by its
Chairman after it has been considered by the Assembly of Heads of State and
Government.
CHAPTER IV
APPLICABLE PRINCIPLES
ARTICLE 60
The Commission shall draw from international law on human and peoples
rights, particularly from the provisions of various African instruments on
human and peoples rights, the Charter of the United Nations, the Charter of
the Organization of African Unity, the Universal Declaration of Human Rights,
other instruments adopted by the United Nations and by African countries in
the field of human and peoples rights as well as from the provisions of
various instruments adopted within the Specialised Agencies of the United
Nations of which the parties to the present Charter are members.
ARTICLE 61
The Commission shall also take into consideration, as subsidiary measures
to determine the principles of law, other general or special international
conventions, laying down rules expressly recognized by Member States of
the Organization of African Unity, African practices consistent with interna-

tional norms on human and peoples rights, customs generally accepted as
law, general principles of law recognized by African States as well as legal
precedents and doctrine.
ARTICLE 62
Each State party shall undertake to submit every two years, from the date
the present Charter comes into force, a report on the legislative or other
measures taken with a view to giving effect to the rights and freedoms
recognized and guaranteed by the present Charter.
ARTICLE 63
1. The present Charter shall be open to signature, ratification or adher-
ence of the Member States of the Organization of African Unity.
2. The instruments of ratification or adherence to the present Charter
shall be deposited with the Secretary-General of the Organization of African
Unity.
3. The present Charter shall come into force three months after the recep-
tion by the Secretary-General of the instruments of ratification or adherence
of a simple majority of the Member States of the Organization of African
Unity.
PART III - GENERAL PROVISIONS
ARTICLE 64
1. After the coming into force of the present Charter, members of the
Commission shall be elected in accordance with the relevant Articles of the
present Charter.
2. The Secretary-General of the Organization of African Unity shall con-
vene the first meeting of the Commission at the Headquarters of the Organi-
zation within three months of the constitution of the Commission. Thereafter,
the Commission shall be convened by its Chairman whenever necessary but
at least once a year.
ARTICLE 65
For each of the States that will ratify or adhere to the present Charter
after its coming into force, the Charter shall take effect three months after
the date of the deposit by that State of its instrument of ratification or
adherence.
ARTICLE 66
Special protocols or agreements may, if necessary, supplement the provis-
ions of the present Charter.
ARTICLE 67
The Secretary-General of the Organization of African Unity shall inform
Member States of the Organization of the deposit of each instrument of
ratification or adherence.
ARTICLE 68
The present Charter may be amended if a State party makes a written
request to that effect to the Secretary-General of the Organization of African
Unity. The Assembly of Heads of State and Government may only consider
the draft amendment after all the States parties have been duly informed of it
and the Commission has given its opinion on it at the request of the sponsor-
ing State. The amendment shall be approved by a simple majority of the
States parties. It shall come into force for each State which has accepted it in
accordance with its constitutional procedure three months after the Secretary-
General has received notice of the acceptance.
20 The Socialist Countries and
Human Rights
Vladimir Kartashkin
1. THE SOCIALIST CONCEPT OF HUMAN RIGHTS
(a). The law of the socialist countries and human rights

The socialist concept of human rights does not reject the idea of inalienable
natural human and citizens rights. But the Marxist-Leninist theory deduces
human rights not from the nature of man but from the position of an
individual in the society and, above all, in the process of public production. It
proceeds from the premise that social opportunities and rights are not inher-
ent in the nature of man and do not constitute some sort of natural attributes.
Rights and freedoms of individuals in any State are materially stipulated and
depend on socio-economic, political and other conditions of the development
of society, its achievements and progress.
Karl Marx and Friedrich Engels defined law as the will of the dominating
class raised to the level of law, as determined by material conditions of life.
Applied to human rights, this definition means that the State cannot guaran-
tee the realization of the rights whose real ensurance is not prepared by the
course of the economic development of a given society. Human rights mature
deep inside the socio-economic structure of the State and are a product of its
development. Their fundamental source is the material conditions of societys
life. It goes without saying that the State may proclaim any rights and
freedoms but it cannot implement them unless appropriate material prereq-
uisites exist.
Of course, economic relations cannot by themselves engender either legal
prescriptions or any human rights and freedoms. They only create conditions
and prerequisites for the emergence of these or those legal ideas and views
which are then recognized legislatively. The question as to what rights and
freedoms are to be granted to an individual and to what extent they are to be
realized depends on the interests of the dominating class, its political, eco-
nomic and social requirements. This means that the institution of human
rights and freedoms has a clearly defined class nature. Freedom of personal-
ity, democracy, law, justice-all these notions serve as instruments of the

implementation of the dominating classs policy, a form of the expression of
its interests. Not only do the civil and political rights have a class nature, but
this is equally true of the socio-economic rights.
Pointing out the necessity of class evaluation of the social process, V.I.
Lenin wrote that people have always been and will always be silly victims of
deceit and self-deceit in politics until they learn to disclose the interests of
these or those classes behind any moral, religious, political, social phrases,
statements and promises. Thus the socialist theory of human rights proceeds
from the premise that human rights and freedoms are of a class and political
nature and are materially determined by the economic conditions of the soci-
etys development.
Scientists of socialist countries subdivide law into objective law-the exist-
ing legislation of a country-and subjective law-specific rights, obligations
and opportunities which emerge within the limits of the legislation concern-
ing the participants in legal relations. The socialist theory of State and law
recognizes that all citizens rights are subjective, that is, personal and in-
alienable rights guaranteed by the conditions of the societys life.
Under socialism all citizens are granted broad rights and freedoms which
permit them to participate in the administration of State affairs, in economic
and cultural construction, to enjoy all social benefits, to develop their abilities
and talents. The Programme of the Communist Party of the Soviet Union
stresses that the goal of socialism is an increasingly full satisfaction of mate-
rial and cultural requirements of the people through permanent development
and improvement of public production.4
The abolition of private ownership of the means of production and elimina-
tion of exploitation of man by man and the radical transformation of political
and public life created the necessary conditions for ensuring a broad complex
of rights and freedoms under socialism. The rights and freedoms recognized
in the Covenants on Human Rights and other international instruments have
not only been proclaimed in the constitutions of socialist countries and other
legislative acts but were also really ensured through the creation of social and
material conditions and provisions of concrete means open to the citizens for
the realization of their rights.
The socialist concept of human rights proceeds from the unity and indissol-
ubility of rights and obligations of citizens. The constitutions of socialist
countries recognize the rights and freedoms of citizens, as a rule, in one
chapter under the title of Fundamental rights and freedoms of citizens. The
constitutional obligations are established not only in the interests of the
society and State, but above all, in the interests of every citizen individually.
For example, the eight-grade primary education in most of the socialist coun-
tries is not only a right but also an obligation of everyone. Accordingly, the
sending of children to school is not only a moral right but an obligation of the
parents and failure to comply with it may entail measures of public censure or
The Socialist Countries and Human Rights 633
even administrative responsibility. Similarly, the right to work includes an

obligation for everyone to work and to maintain the discipline of work. This
right and obligation pursues the aim of ensuring the constant growth of
production and the improvement of the well-being of every citizen.
A right written into law always reflects at least bilateral links between
subjects. The right of one person always corresponds to an active or passive
obligation of other persons. Every citizen may dispose of the right recognized
by law only with the assistance and help of other persons, State bodies and
public organizations. Therefore the constitutional rights of citizens correspond
to obligations of States whose juridical expression is manifested as guaran-
tees written into the law, that is, conditions and means which the socialist
State provides to its citizens for the implementation of their rights. Thus the
right to work recognized by law engenders for the State an obligation to
provide to every citizen employment which corresponds to his abilities, knowl-
edge and skill. The right to education is ensured by its being free of charge,
by the development of all forms and kinds of education and by a system of
State scholarships and stipends.
Under socialism human rights are viewed in direct connection with the
freedom of personality, and the attainment of real freedom is related, first of
all, to the liberation of labour from the domination of capital and the elimina-
tion of exploitation of the working people. The socialist concept of human
rights proceeds from the premise that a genuine manifestation of freedom in
society is possible only under the conditions of the liberation of man from all
forms of exploitation. The Programme of the Communist Party of the Soviet
Union stresses that Soviet society ensures the real freedom of personality.
The highest manifestation of this freedom is the liberation of man from ex-
ploitation. Here there is genuine social justice. The political freedomcfreedom
of the press, of expression, of assembly-are interpreted from class positions
as conditions of the consolidation of the working people and the spread of
socialist ideology which rules out the freedom of anti-socialist propaganda,
the freedom to organize counter-revolutionary forces against the fundamen-
tals of socialism.
Freedom in a society is created by the socio-political system of the State.
The rules of law only formally recognize and protect it. The freedom of the
individual is understood as freedom of man in a society, State, collectivity,
and not as freedom from them. Man lives in a certain collectivity, and he
cannot be fully independent of it. Therefore, everyone should compare his
behaviour with the interests and requirements of the whole society.
Personal freedom should be differentiated from personal arbitrariness which
disregards the interests of the society as a whole and hence the interests of
the collectivity. To avoid the transformation of freedom into its opposite-
arbitrariness-it is necessary to promote responsible behaviour in every in-
dividual, that is, a behaviour co-ordinated with the requirements of the law
and public morals.
The freedom of expression recognized in the constitutions of socialist coun-

tries, for example, does not mean an unlimited freedom of statements harm-
ful both to individuals and the society as a whole. Under socialism, law
prohibits the spread of slanderous information, which smears individual citi-
zens, and legislatively prohibits propaganda of war, spread of ideas based on
racism and provoking racial discrimination, etc. In a general form the notion
of freedom of personality is expressed, for example, in Article 38 of the
Constitution of the Socialist Republic of Vietnam which states that no one
may use democratic rights and freedoms to the detriment of the interests of
the State and the people.
The following principles underline the rights and freedoms of citizens in
socialist countries: unity and combination of personal and public interests;
universal accessibility of rights and incontestable nature of obligations; equality
of citizens; and guaranteed rights and freedoms.
The principle of the unity and combination of personal and public inter-
ests belongs to the guiding and fundamental ideas of socialism. In some
socialist countries, this idea was recognized in the constitutions and thus
became a general binding legal rule. The Constitution of Czechoslovakia of
1960 stipulates that in a society of the working people, where exploitation of
man by man has been eliminated, the development and the interests of
its every member are co-ordinated with the development and the interests
of the entire society. Rights, freedoms and obligations of citizens thus
serve the free and comprehensive development of personality and simul-
taneously the consolidation and strengthening of the socialist society (p. 1,
Art. 19).
One should not conclude from the principal of the unity and combination of
personal and public interests that under socialism the interests of the society
and the individual always coincide. Contradictions appear between them as a
result of the clash of interests of the society as a whole with the interests of
individuals (individualism, consumerism, hooliganism, etc.). Contradictions
may emerge from the bureaucratic attitudes of officials of the State ma-
chinery towards their duties. These contradictions are overcome by the elim-
ination of their causes and constant improvement of State policies.
Universal accessibility of rights and incontestable nature of obligations
mean that under socialism every citizen, who has reached a legally estab-
lished age and fulfilled other conditions prescribed by law, has an actual and a
real opportunity to avail himself of all rights and has corresponding obliga-
tions. This principle rules out any privileges for some citizens and additional
obligations for others. It also means that no one may evade his obligations
unless this is provided for by law.
The idea of universal accessibility lies at the basis of such rights, as, for
example, the right to work, to education, to social security, etc. In most of
the socialist countries, for instance, everyone is guaranteed accessible, free
and qualified medical assistance. No citizen in need of such assistance may be
denied it. Denial of such rights or their limitation is possible only in cases
provided for by law.
Equality of citizens is part of the fundamental basis of the legal status of
citizens under socialism. The content of socialist equality is expressed in the
equal position of all members of society in respect to the means of production,
in their equal liberation from all forms of exploitation and oppression, in
equal opportunity to work, to take part in the administration of State and
public affairs, as well as to enjoy all rights and freedoms recognized by the
law. Equality of rights and obligations of all citizens in all walks of life is
expressed in their equality regardless of their social origin, property status,
class affiliation, in equality of men and women, as well as in equality of
citizens regardless of their racial or national origin. Equality of citizens in
socialist countries is guaranteed by law. Article 76, for instance, of the Con-
stitution of the Mongolian Peoples Republic states that the citizens of the
MPR have equal rights regardless of sex, racial and national affiliation, faith,
social origin and status. Legislation of socialist countries provides for crimi-
nal responsibility for any direct or indirect limitation of the rights of citizens
or, on the contrary, the establishment of preferences for citizens depending
on their racial and national affiliation.
Guaranteed rights and freedoms are expressed in the fact that socialist
countries have firm legal guarantees which ensure the protection of the rights
and freedoms of citizens and safeguard against their violation. Administra-
tive legislation in socialist countries determines the rights and obligations of
officials and administrative organs at different levels in such a way that their
activity would best facilitate an effective realization of the rights and free-
doms of citizens and protect them from encroachments. State institutions are
responsible for the damage inflicted upon citizens by incorrect acts of of&
cials, and such damage done to the property of citizens is to be restituted fully.
A major role in the protection of the rights of citizens is played by organs of
control and supervision-party control, popular control, procurators super-
vision and judicial control. Supervision of strict compliance with law, both by
institutions and organizations and by officials and individual citizens, is en-
trusted in socialist countries to organs of the Procurators department which
perform their functions independently of any local organs. As an organ exercis-
ing the highest control over the implementation of laws, the Procurators
office also takes steps for the elimination of violations in criminal and civil
legal proceedings.
The exercise of supervision of strict compliance with the law and the adop-
tion of steps for the elimination of violations are the main content of the
activity of the Procurators office. Having established a violation, the Procu-
rators office takes steps for its elimination by submitting proposals for con-
sideration by other organs of the State (judiciary organs, administrative
bodies, courts of law). These proposals are necessarily examined by the State
organs and officials, and decisions are taken on them.
Vladimir Kartashkin
The Procurators office has broad powers in protecting political labour,

housing, property and other rights of citizens. According to Article 41 of the
Criminal and Procedural Code of the Russian Federation, the Procurator
may take up a case at any stage in court if it is demanded by the protection of
state or public interests or rights and interests of citizens protected by law.
For example, any citizen of the USSR may send to the Procurator an applica-
tion or complaint regarding a violation of the law or of his rights. These
complaints have to be considered within one month. In case of the establish-
ment of a fact of violation of law, the Procurator is under obligation to achieve
the full restoration of the citizens rights and punishment of persons who
violated the law. Officials and citizens who commit criminal offences are
subjected to criminal proceedings by the Procurator.
The institution of appeal is one of the main guarantees of the observation of
the rights and freedoms of citizens. In the USSR, for example, any citizen
may appeal against actions of any official or any institution which violate or
encroach upon his personal rights and interests. The Decree of the Presidium
of the USSR Supreme Soviet of 12 April 1968, On the order of considering
proposals, applications and complaints of citizens, has determined: the order
of lodging complaints in the Soviet Union; time limits for their examination;
control over the implementation of decisions taken on the application of citi-
zens; and responsibility of officials for the violation of the established order of
the examination of complaints.
The level of the development of the rights and freedoms of citizens in
socialist countries is not limited. The process of extending the real content
and economic assurance of the rights, their legal safeguards, protection and
defence will continue.
(b). The socialist countries and the protection of international human rights
In some respects international life today is characterized by a turn from
confrontation to a relaxation of international tensions, and by the reorganiza-
tion of the entire system of international relations on the basis of the princi-
ples of peaceful co-existence, the observance of which is becoming a norm of
relations among States with different social systems. The establishment and
consolidation of peaceful, good-neighbourly relations among countries is in-
separable from the expansion of their co-operation in promoting and ensuring
observance of fundamental human rights and freedoms.
Having proclaimed the principle of respect for human rights and freedoms
and outlawed the use of force between States, the UN Charter has thereby
recorded in modern international law the right to peace as a fundamental
right of every human being. Fundamental rights and freedoms can be se-
cured only in conditions of peace and peaceful co-existence. The right to
peace is an inalienable right of everyone on earth. The ideal of a free human
personality relieved of fear and want may be realized only in conditions
of peace and peaceful co-existence among States. This is a necessary condi-
tion for securing for everyone economic, social, cultural, civil and political
rights.
Co-operation among States in promoting and encouraging respect for human
rights and in achieving other aims of the UN must be based, according to
Article 2 of the Charter, on the observance of its principles. This means that
co-operation of States in the field of human rights must be combined with
unfailing observance of the principles of sovereign equality of States and
non-interference in the affairs which are essentially within their domestic
jurisdiction.
The report of the Subcommittee I/l/A of the San Francisco Conference,
which discussed paragraph 3 of Article 1 of the UN Charter, pointed out that
the ensurance and direct protection of human rights and fundamental free-
doms is the internal affair of every State. For this reason, the Subcommittee
did not accept proposals to the effect that paragraph 3 of Article 1 should
speak not of promoting and encouraging respect for human rights and for
fundamental freedoms, but of protecting them.
The volume of human rights, their real content and guarantees are deter-
mined in the final analysis by the character of the social and economic system
of a State. It is therefore only natural that the volume of rights and freedoms
granted to the individual is different in member countries of the UN. De-
pending on the social and economic conditions and the extent of the realiza-
tion of human rights and freedoms, each State regulates their volume and
introduces definite guarantees. Proclamation of rights unsupported by ap-
propriate internal State measures is largely an empty formality.
The participants in the European Security Conference in Helsinki, formu-
lating the principle of sovereign equality and respect of rights inherent in
sovereignty, reached a fundamental understanding to respect each others
right freely to choose and develop its political, social, economic and cultural
systems, as well as its right to determine its laws and regulations. In this
way, a formulation was given of an important norm of international law
pledging the States to build their mutual relations on the basis of respect for
both the laws and administrative regulations of each other. It goes without
saying that in establishing their laws and administrative regulations, States
must act according to their juridical obligations assumed under international
agreements. The Conference on Security and Co-operation in Europe reaf-
firmed the most important thesis of modern international law to the effect
that the immediate settlement of questions of the legal regulation of human
rights and freedoms lies within the domestic jurisdiction of States.
The UN Charter, as well as the post-war agreements in the field of human
rights, refer the direct provision and protection of human rights and free-
doms exclusively to the domestic jurisdiction of the States. They speak not
about international protection of human rights but of promotion of interna-
tional co-operation with the aim of encouraging universal respect for, and
observance of, human rights and freedoms (Art. 1 and Art. 55 of the Charter).
These questions are regulated in the Charter differently with respect to

trust and non-self-governing territories. The provisions of the UN Charter
on matters constituting the domestic jurisdiction of States do not apply to the
colonial system based on suppression of sovereignty and seizure of foreign
territories. The problems relating to non-self-governing and trust territories
are of an international character and do not belong to the domestic jurisdic-
tion of the colonial powers.7 The UN Charter places on the colonial powers
the obligation to promote to the utmost. . . the well-being of the inhabitants
of these territories, to ensure their social advancement, their just treatment
and their protection against abuses, to assist them in the progressive devel-
opment of their free political institutions (paragraphs a and b, Article
73) and also to encourage respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion
(paragraph c, Article 76). Chapters XI and XII of the UN Charter oblige
the colonial powers to submit to the UN information on the non-self-governing
and trust territories and the Trusteeship Council is empowered to accept
petitions and examine them and also to provide for periodic visits to the
respective trust territories. The Special Committee on the Situation with
regard to Implementation of the Declaration on Granting Independence to
Colonial Countries and Peoples, set up by a decision of the UN General
Assembly in 1961, also has the powers to examine petitions, to receive peti-
tioners, to receive information and visit respective territ0ries.s The Trustee-
ship Council and Special Committee regularly examine at their sessions petitions,
many of which concern violations by the colonial powers of the rights and
freedoms of the peoples of dependent territories. These questions are also
dealt with by the Committee on the Elimination of Racial Discrimination in
accordance with Article 15 of the International Convention on the Elimina-
The UN Charter and resolutions and agreements adopted by the United
Nations Organization not only place on the colonial powers the obligation to
promote respect for human rights and their observance on non-self-governing
and trust territories, but also established a system of direct international
control over their activities. It is therefore fully justified to speak of interna-
tional protection of human rights with reference to colonial and dependent
peoples.
International protection of human rights is also implemented through the
application of Chapter VII of the UN Charter. According to paragraph 7 of
Article 2 of the Charter, the principle of non-interference in matters which
are essentially within the domestic jurisdiction of any State does not affect
the application of enforcement measures in line with Chapter VII of the
Charter.
The report of the Subcommittee I/l/A at the San Francisco Conference
pointed out that if rights and freedoms were grievously outraged so as to
create conditions which threaten peace or to obstruct the application of provis-
ions of the Charter, they cease to be the sole concern of each State. In this
case the UN can apply enforcement measures against the State which by its
actions is jeopardizing peace and international security. The UN has repeat-
edly discussed the question of enforcement measures against countries where
flagrant violations of human rights and freedoms created a threat to peace
and international security. The UN General Assembly has often qualified the
apartheid policy pursued by the Republic of South Africa as a crime against
humanity and recommended the use of sanctions against this country. The
Convention on the Prevention and Punishment of the Crime of Genocide
adopted in 1948 provides for a whole complex of international measures to cut
short this crime. The Convention on the Suppression and Punishment of the
Crime of Apartheid, adopted in 1973 by the UN General Assembly, qualifies
apartheid as a crime and provides for international criminal responsibility
for it.
Consequently, violation of human rights perpetrated on a mass scale and
endangering peace and international security or representing gross negation
of the aims and principles of the UN Charter is not the exclusive concern of
the State pursuing such policy and gives the UN the right to apply enforce-
ment measures. It is equally clear that if a State perpetrates actions qualified
by international law as international crimes or international offences such
actions are not the internal affair of the State concerned.
In pursuance of the provisions of the UN Charter, a number of interna-
tional agreements and conventions on human rights have been adopted within
the framework of the United Nations Organization. Some of them provide for
the establishment of special committees, one of whose functions is, in particu-
lar, to examine reports of participating States on measures taken by them to
implement assumed obligations.
In literature on international law, there is a widely-held view that these
committees are organs in charge of the implementation of the given agree-
ments. lo The use of the term implementation implies that such organs have
the functions for the practical realization of agreements by means available to
them. The term implementation is defined in the dictionaries as carrying
into effect according to a definite procedure or as ensuring practical effect
and actual fulfillment by concrete measures. l2 Many experts in international
law give a similar interpretation of the powers of the so-called implementa-
tion organs, believing that they possess the functions of direct implementa-
tion of human rights and their protection. They claim that implementation of
human rights should be effected not by the States, but by a special interna-
tional mechanism. a Only a few individual scholars adhere to correct positions
on these questions and hold the view that implementation of human rights is
the internal affair of States. l4
We are convinced that theoretically and practically it is more proper to
speak not about implementation organs but about an international mecha-
nism with functions of control over fulfilment of adopted agreements. In
international law the concept of control is used mainly to denote methods of

verification of fulfilment of obligations assumed by States. As regards human
rights, forms of control and the principles of their functioning are determined
by the UN Charter and decisions of the United Nations Organization and
international agreements. Under the most widespread form of control, the
States submit information to the General Secretary of the UN or to a spe-
cially instituted organ concerning maintenance of specific rights.
Under the Covenants, the Economic and Social Council is empowered to
make recommendations of a general nature only, on the information sub-
mitted by the participating States. The Human Rights Committee, estab-
lished in keeping with the Covenant on Civil and Political Rights, is likewise
empowered, after examining reports of States on the implementation of obli-
gations assumed under the Covenant, to make comments of a general char-
acter only. General recommendations on reports of the States parties to
the Covenant, on measures taken by them to fulfil the obligations assumed by
them are also made by the Committee on the Elimination of Racial Discrimina-
tion set up in accordance with the International Convention on the Elimina-
The expressions general recommendations and observations of a gen-
eral nature signify that the appropriate bodies of the UN, when examining
reports of States, have no right to make concrete recommendations on spe-
cific measures to be taken to implement particular human rights and free-
doms. The elaboration and implementation of such measures is the internal
affair of States.
International control over the activity of States in securing human rights
and freedoms must be exercised with strict observance of their sovereignty
and non-interference in their internal affairs. Only on this basis is it possible
to ensure effective operation of the entire system of international control.
Making recommendations of a general character, the UN has no power to
address them to particular States, since both the direct elaboration of con-
crete measures and their realization are matters of domestic jurisdiction of
States. Exceptions to this general rule are justified only when they concern
the application of Chapters VI and VII of the UN Charter with reference to
trust and non-self-governing territories and also in cases when international
crimes are committed.
This practice has become fairly widespread in the UN with special groups
being set up to study concrete situations and to investigate the cases of gross,
mass and systematic violations of human rights, including the policy of racial
discrimination and apartheid in colonial and dependent countries and also on
territories occupied as a result of aggression.
Special organs may be formed by the UN to investigate violations of human
rights by fascist and militarist dictatorships. The legality of formation of such
organs rests on the fact that the policy pursued by military-fascist dictator-
ships negates the aims and principles of the UN Charter and is accompanied
by mass and systematic violations of elementary human rights and freedoms.

This is why the Commission on Human Rights in 1975 formed an ad hoc
working group of five members to investigate the situation in the field of
human rights existing in Chile by visiting the country and collecting oral and
written evidence from all appropriate sources (Res. 8 (XxX1)).
There are diverse forms of control over the fulfilment by States of their
obligations to promote respect of human rights and freedoms and their ob-
servance. They depend on whether control is applied with reference to sov-
ereign States or to the activities of metropolitan powers on colonial territories.
In a number of cases it may also be determined by the character of violations
of human rights and freedoms.
The institution by the UN of special bodies with the functions of direct
control is rightful only in strictly defined and concrete situations in cases of
flagrant violations of human rights representing negation of the aims and
principles of the UN Charter or constituting an international crime, by way
of application of Chapters VI and VII of the UN Charter, and also in cases of
systematic, mass and gross violations of human rights and freedoms in colo-
nial and dependent countries and in territories occupied by an aggressor.
The institution of special organs in other situations to examine questions
related to human rights inevitably lends an unlawful orientation to their
activity which assumes the character of interference in the internal affairs of
States. The many years experience of discussion of questions of human rights
in the UN has clearly demonstrated that a well thought out and legitimate
activity of a control mechanism based on the UN Charter and universally
recognized principles of international law is of paramount importance for
effective functioning of the entire system of relations among States in this
field.
International relations are developing today in conditions of relaxation of
tension among States and a mounting struggle against the policy of aggres-
sion, fascism, colonialism, genocide, apartheid, racialism and other gross and
mass violations of fundamental human rights and freedoms. The deepening of
the process of international detente and extension of good neighbour rela-
tions among States with different social and economic systems are insepara-
bly bound up with the elimination of gross and massive violations of human
rights which are still fairly extensive. International co-operation of States in
the field of human rights should be aimed, first of all, at combating mass and
gross violations of rights and freedoms committed as a result of policies of
aggression, fascism, colonialism, genocide, apartheid and racialism. The elimi-
nation of hotbeds of international tension and development of normal rela-
tions between States is a most important prerequisite for the observance of
human rights and freedoms.
Unless aggressive wars, fascism, colonialism, genocide, apartheid and rac-
ism are eliminated, elementary human rights and freedoms cannot be en-
sured. Struggle against these international deli&s is the only radical way of
deepening co-operation of States in promoting respect for human rights and

their observance. There are still many untapped reserves and potentialities
here. The growth of co-operation of States in eliminating mass and gross
violations of human rights rests on a firm base of international law. The most
gross and mass violations of fundamental human rights and freedoms repre-
senting a special danger to universal peace and international security are
treated by modern international law as international crimes. This is reflected
in a number of international documents according to which the concept in-
ternational crime includes crimes against humanity and crimes against in-
ternational law.
Article 6 of the Charter of the International War Tribunal in Nuremberg
includes three types of crimes against mankind in the category of interna-
tional crimes-crimes against peace, war crimes and crimes against humanity:
Crimes against peace, namely: the planning, preparation, unleashing or
waging of an aggressive war or war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspiracy
pursuing one of the above mentioned actions;
War crimes, namely: violation of the laws or customs of war. These viola-
tions include the killing, torturing or withdrawal for enslavement or other
purposes of the civil population of occupied territories, the killing or tortur-
ing of prisoners of war or persons at sea; killing of hostages; plunder of public
or private property; senseless destruction of towns or villages; devastation
unjustified by military necessity and other crimes;
Crimes against humanity, namely: killings, annihilation, subjugation, de-
portation and other cruelties perpetrated against civilian populations before
or during war, or persecution for political, racial or religious motives with the
aim of committing a crime or in connection with any crime subject to the
jurisdiction of the Tribunal, irrespective of whether these actions constituted
a violation of the law of the country concerned or not.
All these crimes involve violation of elementary human rights and freedoms.
Aggression is incompatible with the principle of respect for, and dbser-
vance of, human rights. It signifies complete negation of practically the en-
tire complex of rights fixed in the Covenants on Human Rights and other
international instruments. To the right of peoples to self-determination, the
right of every individual to life, liberty and security of person, to just and
favourable working conditions, to the highest attainable standard of physical
and mental health and other rights, the aggressor opposes his domination
through appropriation of natural wealth and resources of peoples inhabiting
occupied territories, terror, repression, violence and killing. The removal of
war from the life of society and the development of mutual relations between
States on the basis of the principles of peaceful coexistence are the most
important prerequisites and the necessary conditions for the observance of
human rights and freedoms.
The Convention on the Prevention and Punishment of the Crime of Geno-
tide refers to the category of international crimes of which genocide, accord-

ing to Article I of the Convention, is a crime under international law. The
Convention on the Non-Applicability of the Statutory Limitations to War
Crimes and Crimes against Humanity treats as international crimes, war
crimes, crimes against humanity, eviction as a result of armed attack or
occupation and inhuman acts which are the consequences of the policy of
apartheid, and also crimes of genocide (Article I). Apartheid is also qualified
as a crime violating the principles of international law in the Convention on
the Suppression and Punishment of the Crime of Apartheid (Article I).
International documents adopted within the framework of the.UN refer to
international crimes against peace, war crimes, crimes against humanity,
crimes of genocide and apartheid and the policy and practice of racial segre-
gation and discrimination similar to it.
The separation of international crimes from the category of international
delicts is justified by their particularly dangerous character for peace and
international security. International crimes are also specific in that they are
usually committed not by private individuals but by officials acting on behalf
of a State. Therefore the perpetration of an international crime should lead
not only to the criminal responsibility of the culprits, but also to the responsi-
bility under international law of the State on whose behalf they acted.
In contrast to international crimes we must distinguish international of-
fences which take the form of violations of the operative norms and principles
of international law. These offences resulting in violations of human rights
and freedoms include the policy of fascism, colonialism and racial discrimina-
tion. Fascism is the total negation of human rights and freedoms. Resorting
to crude violence as a means of achieving power, Nazi and fascist forces
consciously use terror to suppress opposition and bolster their power. Fascist
parties and groupings use democracy merely as a stepping stone to power
and then they abolish it, establishing a regime of terror and cynical and
outright negation of legality. For many years the UN has examined the
question of measures to be taken against Nazism and racial intolerance. In a
number of its resolutions the General Assembly has qualified Nazism as an
ideology based on terror and racial intolerance and representing a gross
violation of human rights and fundamental freedoms and also the aims and
principles of the UN Charter (Resolutions 2331 (XXII), 2433 (XXIII), 2545
(XXIV), 2713 (XXV), 2839 (XXVI)). In these resolutions, the General As-
sembly urgently appealed to all States to put an end to the dissemination of
such ideology and practice.
Colonialism, too, is incompatible with the principle of respect for, and
observance of, fundamental human rights and freedoms recorded in the UN
Charter. The Declaration on the Granting of Independence to Colonial Coun-
tries and Peoples emphasizes that the subjection of peoples to alien subjuga-
tion, domination and exploitation constitutes a denial of fundamental human
rights, is contrary to the Charter of the United Nations and is an impediment
to the promotion of world peace and co-operation. The Declaration states

that all peoples have the right to self-determination; by virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development. It stresses that inadequacy of political,
economic, social or educational preparedness should never serve as a pretext
for delaying independence. The Declaration calls on all the States to observe
strictly and faithfully the provisions of the UN Charter and the Universal
Declaration of Human Rights. One of the fundamental ideas of the Declara-
tion is that colonialism is a negation of fundamental human rights and free-
doms. Only when they implement the right to self-determination and achieve
independence can the peoples of colonial and dependent territories win com-
plete respect for, and observance of, their rights and freedoms.
Modern international law also qualifies as unlawful racial discrimination,
prohibiting it in any form and manifestation. The development of inter-State
co-operation in ensuring human rights and freedoms is inseparable from the
elimination of these mass and gross violations which result from the policies
of aggression, fascism and Nazism, colonialism, genocide, apartheid and rac-
ism. A cardinal way of international protection of human rights lies through
liquidation of these violations. As regards the direct provision of rights for
every individual, this is a prerogative of the State, not of the international
community. Further perfection of the forms and methods of international
co-operation in the field of human rights will depend on the extension of the
process of relaxation of tensions and its materialization and, as a consequence
thereof, growth of trust among States with different social systems.
2. CO-OPERATION AMONG SOCIALIST COUNTRIES IN THE

FIELD OF HUMAN RIGHTS
The socialist concept of human rights does not reject the idea of regional
protection of human rights but posits that steps taken on a regional scale
should be based on the strict observance of the UN Charter and the univer-
sally recognized principles of international law. Activities of regional organi-
zations should promote the realization of the aims and principles of the United
Nations and facilitate the implementation of its decisions in the sphere of
human rights.
Some international law experts are concerned lest the division of the world
into regions should weaken the forces of the international community in the
elaboration and realization of specific measures aimed at safeguarding human
rights. They believe that, in the present conditions of the existence of the
United Nations, regional organizations are incapable of achieving any major
success in this field.15 According to them, efforts should be concentrated,
first of all, on the elaboration of a specific procedure for safeguarding human
rights within the UN framework. l6
Socialist countries, on their part, proceed from the premise that in the
specific conditions of the construction of socialism and communism the best
form of co-operation among them in all fields of relations are bilateral and
multilateral agreements.17 Scholars of socialist countries believe that individ-
uals are not subjects of international law. According to them, the recognition
of the international legal capacity of individuals leads to undermining of state
sovereignty and to interference with domestic affairs of States.s
According to this concept, every individual is under the jurisdiction of the
State in whose territory he resides and to whose law and order he submits. It
is not an individual who operates in the world arena but the State as a
sovereign political entity which has its own will, as distinct from the will of
individual citizens. This is the will of the dominating class in a given society.
It is obvious that both the State and its organs operate in international
relations as duly authorized persons. Acting in this capacity, an individual
acquires rights not for himself but for the State which bears international law
responsibility for his actions. In concluding an international treaty which
provides for certain rights to individuals, the State assumes the responsibil-
ity to provide such rights to persons under its jurisdiction.
Each State party to a treaty, in the implementation of its international
obligation, takes legislative and other adequate internal measures. Specific
application of these measures is wholly under the domestic competence of the
States. International agreements do not grant any rights directly to individ-
uals. These agreements only place the States under obligation to ensure
certain rules of behaviour by individuals and to grant them certain rights.
Under socialism, States perform their functions exclusively in the interests
of their citizens. Every citizen has at his disposal a number of national facili-
ties for the protection of his rights and interests. Therefore, according to the
socialist concept of human rights, there is no need to establish special re-
gional organizations for the protection of individuals rights in the countries
which are in the process of constructing socialism and communism. This
protection is ensured both by domestic facilities and through the develop-
ment of bilateral and multilateral co-operation among the socialist countries.
Socialist States have concluded a number of treaties on legal assistance in
civil, family and criminal cases. In accordance with these agreements, citi-
zens of one contracting party enjoy in the territory of another country the
same legal protection as the local citizens with respect to their personal and
property rights. These treaties regulate problems of the family, marriage,
establishment and contestation of parenthood, guardianship, trusteeship, adop-
tion, inheritance, etc. lg
Direct protection of the rights and interests of the citizens of one socialist
country in the territory of another is effected by consular missions. They are
established by the conclusion of appropriate consular conventions. Since 1957,
socialist countries have concluded among themselves a large number of such
conventions either for an indefinite period or for the period of five years with
subsequent automatic prolongation for another five years. The convention

may be denounced by any of the contracting parties. In this case it becomes
invalid upon the expiry of the six-month period, after one of the parties has
notified the other of its wish to withdraw from it.
The main function of the consular missions is to protect the rights and
interests of their State and their citizens. The consul represents his country
in his consular region and performs mainly administrative and legal func-
tions. In the exercise of their duties, the consuls may address representa-
tions to the local authorities of the consular region on the occasion of the
violation of rights and interests of the citizens of the country which had
appointed the consul. He may also represent his citizens in the courts of law
of the host country.
Relations among socialist countries after the Second World War emerged
and developed as the relations of political co-operation which in many re-
spects determined the scope and nature of their economic, cultural and other
ties. Although the agreements in the political and economic fields do not
directly concern problems of human rights, their implementation and obser-
vance by the contracting parties has direct importance for the ensurance of
economic, social and other rights of citizens of socialist countries.
In the political field, socialist countries have concluded a number of treaties
of friendship, co-operation and mutual assistance. Presently, over thirty such
treaties are in force. Although these treaties are of a general political nature,
the obligations of the contracting parties cover also other spheres of their
relations-economic and cultural. For example, the Treaty of Friendship,
Co-operation and Mutual Assistance, concluded on 12 May 1967 between the
USSR and Bulgaria, contains obligations of the contracting parties to de-
velop economic, scientific and technical co-operation, as well as ties in the
field of education, health, literature, arts, press, cinema, radio and television
(Art. 2-3). The Treaty of Friendship, Co-operation and Mutual Assistance
signed in 1961 between the Socialist Republic of Vietnam and the Mongolian
Peoples Republic states that the Parties shall conclude individual agreements
in the economic and cultural fields (Art. 2-3).
The multilateral Warsaw Treaty of Friendship, Co-operation and Mutual
Assistance, concluded on 14 May 1955 by Albania, Bulgaria, Hungary, the
German Democratic Republic, Poland, Rumania, USSR and Czechoslovakia,
did not abolish obligations following from bilateral treaties, but rather sup-
plemented them. Article 8 of the Warsaw Treaty notes that the contracting
parties will act in the spirit of friendship and co-operation with the purpose of
the further development and consolidation of economic and cultural ties among
them. After the conclusion of the Warsaw Treaty, the socialist countries
continued the practice of concluding bilateral treaties of friendship, co-operation
and mutual assistance. These treaties laid the basis for a broad development
of economic and cultural relations among socialist countries.
In the first post-war years economic ties among socialist countries were
developing on a bilateral basis. At a later stage these bilateral forms began to

be supplemented by multilateral agreements of an economic nature. The
beginning of such multilateral co-operation was laid by the establishment in
1949 of the Council for Mutual Economic Assistance whose founding mem-
bers were Bulgaria, Hungary, Poland, Rumania, USSR and Czechoslova-
kia. The purpose of the establishment of the Council for Mutual Economic
Assistance, as noted in Article 1, paragraph 1 of its Charter, is to promote:
the acceleration of economic and technological progress in the CMEA Mem-
ber States; the level of industrialization of countries with less developed
economies; continuous growth or productivity of labour; and the continuous
improvement of the well-being of the peoples of the CMEA Member States.
The drawing closer of the levels of economic development of the CMEA
Member States through the achievement of levels of the most advanced
socialist countries and raising on this basis the material status and well-being
of every member of the society facilitates the real ensurance of such fundamen-
tal rights of the working people as the right to work, to an adequate standard
of living and continuous improvement of its conditions.
The activities of the Council for Mutual Assistance are based on the princi-
ple of sovereign equality of all member countries (Article I, paragraph 2, of
the CMEA Charter). The Council is authorized to pass only recommenda-
tions on all matters of economic, scientific and technical co-operation (Article
IV, paragraph 1). Decisions are adopted only on procedural and organiza-
tional matters (Article IV, paragraph 2). In 1971 the CMEA member coun-
tries adopted the Comprehensive Programme of socialist economic integration.
This programme determines the principles, aims, ways and means of eco-
nomic integration and envisages the gradual drawing together and levelling
of economic development of these countries. The implementation of the pro-
gramme will facilitate the fullest realization of a broad complex of socio-
economic rights provided in the International Covenant on Economic, Social
and Cultural Rights.
In past years co-operation in the field of social security, including social
insurance, has been broadly developed among the socialist countries. Several
inter-governmental agreements have been concluded, extending the provis-
ions of social security legislation applicable to citizens of one socialist State to
citizens of other socialist countries who reside in its territory. The agreement
between the USSR. and Bulgaria on social security of 11 December 1959
envisages the extension of its provisions to all aspects of social security of
citizens which will be established by legislation of the contracting parties
(Article 1). According to the agreement, citizens of one contracting party
who permanently reside in the territory of another contracting party are
equal to the citizens of the other contracting party in all matters of social
security including medical assistance and labour relations.
Article 4 stipulates that in granting pensions and benefits full account is
taken of the length of service in the territories of both contracting parties.
According to Article 8, temporary disability benefits, child allowances, ma-

ternity and confinement benefits and benefits at childbirth are determined
and paid by the competent authorities of the contracting parties in whose
territory a given citizen is residing, and in accordance with the legislation of
that country. Mutual payments between the contracting parties are not
made (Article 12).
Similar provisions can be found in other agreements concluded between
socialist countries in the field of social security. Cultural co-operation among
socialist countries has been considerably developed. The socialist countries
proceed from the premise that international cultural co-operation is one of
the most important conditions of the development of contemporary science
and culture which facilitates the fullest ensurance of the right of everyone to
free participation in cultural life. This co-operation lays an important role in
mutual enrichment of national cultures. Agreements on cultural and scientific
co-operation in the post-war period have been concluded at different times
between all socialist countries.
The types and forms of co-operation among socialist countries in the field of
culture and science are diverse. For example, the agreement between the
USSR and Hungary of 1968 requires each State to familiarize regularly their
working people with the peoples life in the other country (Article 2). The
agreement contains the obligation to encourage teaching in higher and other
educational establishments of the language, literature, history and geogra-
phy of the other country, as well as to spread information about it (Article 5).
Much attention is paid to the question of co-operation in the field of press,
cinema, radio and television. The agreements on cultural co-operation pro-
vide for the establishment of permanent mixed commissions or committees,
as well as annual meetings of representatives of the parties for the elabora-
tion and examination of the progress of the implementation of plans of co-
operation.
Matters of co-operation in the field of education occupy a place of impor-
tance in the inter-governmental agreements on cultural co-operation. They
are also regulated by bilateral agreements between the USSR and other
socialist countries on the training of the citizens of these countries in the
USSRs higher educational institutes and by bilateral agreements on condi-
tions of mutual acceptance of students and post-graduates in the higher edu-
cational establishments and scientific research institutes.
The less developed socialist countries receive great assistance from the
more developed socialist countries in the sphere of training specialists in
higher education. For example, in 1978several tens of thousands of students,
post-graduates and probationers from socialist countries studied in the So-
viet Union. From the Socialist Republic of Vietnam alone, seven thousand
students studied in the USSR. All expenses connected with education, in-
cluding transportation to the place of study, travel inside the country, provi-
sion of lodging and free medical assistance are covered by the host country.
Thus bilateral and multilateral agreements concluded between the socialist

countries in different fields of their relations have a direct bearing on the
ensurance of human rights. The realization of these agreements facilitates
the fullest ensurance of a broad complex of civil, economic, social and cultural
rights of citizens of socialist countries.
NOTES
1. K. Marx and F. Engels, Manifesest Kommunisticheskoj Pa&i, Soch., t. 4, izd. 2-e,
Gospolitizdat, Moskva, 1955, str. 443 (Communist Party Manifesto, Collection of Works,
Vol. 4, Second Edition, State Political Publishing House, Moscow, 1955, p. 443).
2. V.I. Lenin, Poln. sobr. sock., izd 5-e, t. 23, str. 47, Gospolitizdat, 1961 god. (V.I.
Lenin, Complete Works, Fifth Edition, Vol. 23, p. 47, State Political Publishing House,
1961).
3. I. Szabo, Sotsialisticheskoye pravo, Moskva, Izdaniye Progress, 1964, str. 316 (I.
Szabo, Socialist Law, Moscow, Progress Publishing House, 1964, p. 316); N.I. Matuzov,
Lichnost. Prava. Democratiya, Saratov, 1972, str. 12-48 (N.I. Matuzov, Personality Rights.
Democracy, Saratov, 1972, pp. 12-48).
4. Programma Kommunisticheskoj Partii Sovetskogo Sojuza, Politizdat, 1973 str. 15
(Programme of the Communist Party of the Soviet Union, Political Publishing House, 1973,
p. 15).
5. Programma Kowzmunisticheskoj Partii Sovetskogo Sojuza, Politizdat, 1973, str. 16
(Programme of the Communist Party of the Soviet Union, Political Publishing House, 1973,
p. 16).
6. See Documents of the United Nations Conferen,ce on International Organization,
Vol. VI, London-New York, 1945, p. 705.
7. G.N. Morozov, Organizatsiya Obyedinennyh Natsii, Moskva, 1962,str. 171-179(United
Nations Organization, Moscow, 1962, pp. 171-179).
8. UN doe. A/AC/109 (1962).
9. Documents of the United Nations Conference on International Organization, Vol.
VI, London-New York, p. 705.
10. See McDougal and C. Bebr, Human Rights in the United Nations, AJZL, Vol. 58,
No. 3, 1964, pp. 603-641; Proceedings of the American Society of International Law at its
Sixty-Fourth Annual Meeting, AJZL, Vol. 64, No. 4, 1970, pp. 110-119, 123-125. See also,
for example, V. Chkhikvadze, Narody otvergayut rasizm (Peoples Reject Racism),
Mezhdunarodnaya zhizn, No. 5, 1966, pp. 70-77; Y.A. Ostrovsky, OON i prava cheloveka,
Moskva, 1968, str. 108-115(The UN and Human Rights, Moscow, 1968, pp. 108-115).
11. The Random House Dictionary of the English Language, New York, 1968, p. 667.
12. Websters Third New International Dictionary, Massachusetts, 1966, pp. 1134-1135.
13. H. Lauterpacht, International Law and Human Rights, New York, Praeger, 1950,
pp. 221-229; McDougal and C. Bebr, op. cit., pp. 603-641; A. Robertson, The International
Protection of Human Rights, Nottingham, 1970, pp. 6-11.
14. AJIL, Vol. 64, No. 4, 1970, pp. 123-125.
15. Human Rights in National and International Law, edited by A.H. Robertson,
Manchester, University Press,1968, pp. 355-356.
16. John P. Humphrey, The International Law of Human Rights in the Middle Twenti-
eth Century, in The Present State of International Law and Other Essays, edited by
Maarten Bos, Kluwer, The Netherlands, 1973, pp. 75-105.
17. Mezhdunarodnoye pravo v otnosheniyah mezhdu sotsialisticheskimi gosudarstvam,i.
Kurs mezhdunarodnogo prava, Tom VI, Moskva, 1973 (International Law in the Relations
among Socialist States. A Course in International Law, Vol. VI, Moscow, 1973).
18. Kurs mezhdunarodnogo prava, Moskva, Tom I, str. 161-166 (A Course in Interna-
tional Law, Moscow, Vol. I, pp. 161-166).
19. Dogovori ob okazanii pravovoi pomoshchi po grazhdanskim, semeinym i ugolovnym
&lam, zakliuchenniye SSSR s drugimi sotsialisticheskimi stranami, redaktor M.D. Grishin,
Moskva, 1973 (Treaties on Legal Protection in Civil, Family and Criminal Cases concluded
by the USSR with Other Socialist States, edited by M.D. Grishin, Moscow, 1973).
20. For more detail, see: Mezhduvuwodno-pravwiye fmi sotrudnichestva sotsialisticheskih
stran, redaktor V.M. Shurshalov, Moskva, 1962, str. 412-458 (International Law Forms of
Co-operation among Socialist Countries, edited by V.M. Shurshalov, Moscow, 1962, pp.
412-458).
21. Presently, the German Democratic Republic, Cuba, Mongolia, and the Socialist Re-
public of Vietnam are also Member States of the Council for Mutual Economic Assistance.
21 Asia and
Human Rights
Hiroko Yamane
I learnt from my illiterate but wise mother that all rights to be deserved and preserved came
from duty well done. Thus the very right to live accrues to us only when we do the duty of
citizenship of the world. From this one fundamental statement, perhaps it is easy enough to
define the duties of Man and Woman and correlate every right to some corresponding duty to
be first performed. Every other right can be shown to be a usurpation hardly worth fighting
for.
(M.K. Gandhi)
It is apparent that the subject Asia and Human Rights has certain mis-
leading connotations: it conveys the idea that Asia is a regional entity with a
particular Asian approach to human rights. In fact, there is no basis in
geographical proximity to make Asian nations a continent in the same way as
Europe or Africa are considered. Asia is a conglomeration of countries with
radically different social structures, and diverse religious, philosophical and
cultural traditions; their political ideologies, legal systems, and degrees of
economic development vary greatly; and, above all, there is no shared histori-
cal past even from the times of colonialism. Most research on human rights
problems in Asia has, therefore, been national rather than regional.
Yet, there are clearly valid reasons to reflect on Asia and Human Rights
and to undertake studies on the subject. The first reason is that the countries
of Asia display certain essential similarities which facilitate the making of
comparisons. These similarities are the result of two sets of factors. First,
Asian countries are characterized by vast populations, with forms of highly
complex civilizations and social organizations that were in existence long
before the reception of Western laws and legal concepts, and which could
hinder to a certain extent the acceptance of the idea of human rights. Secondly,
the socio-economic and demographic conditions, which prevail in some Asian
countries at least, are conducive to regional co-operation as these countries
strive for economic development. It is important to note that this latter factor
has considerably influenced the view and interpretation of human rights by
Asian political leaders and economic planners.
652 Hiroko Yamane
The second reason for studying Asia and human rights is the need to look at a
series of important questions raised by efforts to promote respect for human
rights in Asia: (1) to what extent is the concept of human rights peculiar to the
Western philosophical tradition and a product of specific political and socio-
economic settings? (2) how compatible is it with the ageless beliefs, institutions
and social practices of the peoples of Asia? and (3) if the means to protect
human rights developed in response to European concern with the individual
in his relationship to the State, what means are appropriate for the protection
of human rights, in situations where neither the individual nor the State
constitute solid institutional realities? In sum, if the concept of human rights is
inherently Western, its implantation in Asia might be considered as an in-
fringement on the cultural rights of the peoples of Asia.
Nevertheless, despite some resistance to what are viewed as alien concepts
or approaches, there are increasingly powerful forces at work within the
region which favour the protection and promotion of human rights. Regional
:o-operation in this field might come to play a larger role in the future. At the
same time, consideration of these forces and the struggles they generate
reveals some of the problems which may arise in seeking to implement human
rights standards in non-Western cultural settings.
This short chapter on Asia and Human Rights will indicate: (1) that Asia,
which has always been confronted with classical human rights problems of
poverty, hunger, unemployment, deprivation of certain civil and political
liberties, and minority problems and which today faces new and emerging
problems of human rights, generated in part by the activities of transnational
corporations and by growing environmental pollution problems, constitutes a
rich source for reflection on the new dimensions of human rights, new forms of
violations of human rights, and new ways and means to combat these prob-
lems; (2) that the struggle for human rights is universal, despite the different
cultural expressions it may take; (3) that what is needed is a real effort to raise
the consciousness of the people at large so that human rights cease to be
essentially a preoccupation of the elite and attain their full potential signifi-
cance for all sectors of society; and (4) that in the Asian region, where rapid
economic growth has been accompanied by a radical social transformation in
a short span of time, so-called collective rights are basically a problem
of individual rights, in the sense that no collective realization is possible
without the assurance of basic individual rights; otherwise, realization of such
collective rights would remain at the level of authoritarian undertakings that
would not awaken peoples consciousness of their rights and fundamental
freedoms. The Asian experience reinforces the concept of the indivisibility of
human rights by showing that it is not possible to allocate, a priori, priority to
certain categories of human rights, or to propose particular stages for the
promotion of human rights, according to the degree of development of a
society.
Asia and Human Rights 653
1. EVOLUTION OF THE APPROACH TO HUMAN RIGHTS PROBLEMS
(a). The spirit of the 1960s

It is, perhaps, not by accident that affluent countries of the world came to believe in and
practice democracy. We. .who belong to the other side, i.e. that of the underdeveloped
countries, also believe in democracy, not because it is believed in by the Western world, but
because we realize that the dignity of man, in fact the survival of the human spirit, is only
possible when a government is freely elected by the people of a country.
It is also well to remember, however, that to the teeming millions of Asia and Africa, things
like freedom and indeed even human dignity itself are only of academic interest. For
them-and they account for the overwhelming majority of the human race-the central
problem. is the problem of getting enough to eat. (and) the satisfaction of hunger alone is
a worthwhile achievement for the foreseeable future. In their case, if totalitarianism can
deliver the goods, i.e.satisfy their hunger, nothing else really matters, not even the loss of
political and civil liberties which they have not known in any case. The main thing is to till
the stomach first.
(Statement by an Asian Minister, February 1964)
The most striking characteristic of the approach to human rights problems

in Asia in the 1960s was the assumption that the attitudes of Asian countries to
human rights are, in general, identical with those of developing countries, as a
whole. This was the view expressed at the Seminar on Human Rights in
Developing Countries organized by the United Nations in Kabul from 12-25
May 1964. At the seminar, which gathered together Asian government offi-
cials, law professors and eminent journalists, a significant controversy arose
concerning the extent which human rights were dependent upon the standard
of living and the level of economic development. Some maintained that imple-
mentation of plans for economic development might, at times, necessitate
restrictions upon the exercise of certain human rights. Others opposed this
view by asserting that the State should never lose sight of the fact that the
purpose of such planning should be to benefit the individual and that, in
discharging its functions, the State should not infringe upon the basic free-
doms of the individual. Nevertheless, the main focus of discussion at the
seminar was that the failure to achieve socio-economic rights was the main
obstacle to ensuring respect for other human rights. For this reason, the
concept of the welfare state was considered to be of particular importance to
developing countries.
At the same seminar, it was also stressed that human rights could not be
fully implemented without a stable system of government and a body of public
officials discharging their duties with fairness and impartiality. In this regard,
some pointed out that the prevalence in certain countries of an authoritarian
attitude on the part of parents, school teachers and the administration tended
to inhibit the development of free criticism and to prevent people from claim-
ing or respecting human rights. The seminar pointed out also that an excessive
654 Hiroko Yamane
concern for the internal and external security of the State might motivate
unnecessary restrictions on human rights. In addition, the possibility of estab-
lishing regional implementation machinery following the model of the Euro-
pean Convention of Human Rights was discussed at the seminar.
About the same time, the International Commission of Jurists (ICJ) held a
South-East Asian and Pacific Conference of Jurists in Bangkok, Thailand
(15-19 February 1965).4 In discussing the factors undermining the rule of law
in South-East Asia, the Conference pointed out that the national movements
which culminated in the obtaining of independence and the introduction of
Western democratic institutions had broken down because the achievement of
economic and social goals through the path of democracy was too slow. Other
factors considered to be hindrances to the realization of human rights included:
the lack of technical skills, absence of proper planning, inefficiency and corrup-
tion in the administrative services, shortage of capital, inadequacy of foreign
aid, political interference in the sphere of administrative and technical deci-
sions, and the population explosion.
The Conference also discussed the possibility of establishing an Asian re-
gional convention on human rights, and examined two other proposals for
regional Conventions on Human Rights which were under active consideration
at the time: the Inter-American Draft Convention on Human Rights adopted
by the Organization of American States; and the Central-American Draft
Convention on Human Rights which was sponsored by the Organization Free-
dom through Law.
It is significant that the idea of drawing up an Asian Convention on Human
Rights was accepted favorably both at the United Nations seminar in Kabul
and at the ICJ Conference in Bangkok, especially by most of the lawyers
participating. However, it is evident that the weakness of such a proposal
resides in the disinterest manifested by Asian governments. Moreover, the
absence of effective regional inter-governmental political or socio-economic
institutions, constitutes a fundamental drawback to such a project.
A further example of concern with the universality of human rights and with
the link between development and human rights during the 1960s was the
Round Table organized by Unesco at Oxford, United Kingdom, from 11 to 19
November 1965.5 This Round Table examined (a) different philosophical and
religious traditions and human rights, and (b) socio-economic conditions facili-
tating or hindering the exercise of human rights. The Round Table aimed at
seeking the means to implement, in different societies, the articles of the
Universal Declaration of Human Rights.Judaeo-Christian traditions, Islam,
Hinduism, Buddhism, and other Asian traditions, as well as traditional Afri-
can philosophies, Western liberalism, Marxism and negritude were exam-
ined to assess how different value systems affect the action of individuals and
States and to facilitate the reconciliation of these values and those advanced by
the Universal Declaration of Human Rights. It is a truism that this latter, at
least up to article 21, reflects the individualistic value system which grew out
of the Judaeo Christian tradition and the rise of capitalism in Europe since the
17th century. It is also evident that the full implementation of these civil and
political rights requires a society which has yet to emerge, even in the West.
The problem for the realization of human rights in actual practice in other parts
of the world is compounded by the presence of social and cultural norms which
appear to be,contrary to the ideals contained in the Universal Declaration of
Human Rights.
All religions and cultural traditions are responses to specific social condi-
tions and results of various quests for achieving the ideals of equality, frater-
nity and justice. However, the Round Table pointed out that certain practices
stemming from traditional social values can hinder the exercise of human
rights. Among those which are particularly relevant to the Asian experience
are the following:
-the existence of rigid social hierarchies, determining social functions accord-

ing to social category or cast. In Confucianism, for example, differences in
birth, wealth, race, sex and language create conditions for different treat-
ment. In Hinduism, the law (dharma) sets forth the duties which each man
must fulfil1 if he wishes to avoid losing caste or has any concern for the
afterworld. These duties vary according to the status of each person and his
age; they are especially demanding for those of a superior social caste.
-the pursuit of certain family and tribal practices which treat rights and
duties from the viewpoint of role obligation in accordance with ones status in
the family or clan.
-the encouragement of submissive attitudes towards political and social
authorities, especially toward the State, and
-the idea that the well-being of the community takes priority over that of the
individual and that loyalty in personal relations is of the utmost importance.
Underlying many such ideas is the notion that rights are defined and granted
ad libidum by the authorities.
It is undeniable that certain traditional behaviour patterns make more
difficult the effective exercise of human rights as defined, for example, in the
Universal Declaration of Human Rights. To the extent that these behaviour
patterns are more or less widespread in the Asian region, the implementation
of human rights is problematic to say the least. The psychological security
which is provided by traditional conceptions of community and human rela-
tions could be used to exclude people from participating in the processes of
political decision-making and development.
Thus the spirit of the 196Os,insofar as scholars, diplomats and international
organizations gave any consideration to the matter of human rights in Asia,
seems to have been characterized by two contradictory trends: optimism
concerning the importation of Western models, on the one hand, and aware-
ness of the obstacles created by traditional cultural and social patterns and by
656 Hiroko Yamane
acute under-development, on the other. The economic dimension was to be-

come predominant in the 1970s.
(b). The impact of Asian economic take-off on respect for human rights
Two justifications for authoritarianism in Asian developing countries are currently fash-
ionable and I find I must say a word on this.
One is that Asian societies are authoritarian and paternalistic and so need governments
that are also authoritarian and paternalistic; that Asias hungry masses are too concerned
with filling their stomachs to concern themselves with civil liberties and political freedoms;
that the Asian conception of freedom differs from that of the West; that, in short, Asians are
not fit for human rights. Well, the first justification is racist nonsense-and I will say no more
than that. The second is a lie: authoritarianism is not needed for development; what it is
needed for is to maintain the statz~squo.7
Development and ideally also planning for development express the desire
for a rationally pursued programme for the realization of all-embracing and
comprehensive well-being. The experience of two development decades of the
United Nations forces one to admit that the programmes and pronouncements
of governments and political parties have little permanent impact on socio-
economic reality, which seems to follow its own logic to a large extent, regard-
less of the wishes of the planners, although the planners themselves might also
be at fault in failing to implement the objectives of the development decades.
Some examples of economic trends in Asia may illustrate this experience.
Starting with a labour-intensive type of economy, Japan launched its economic
expansion in the 1960s and achieved a technology-intensive economy. Later,
the Republic of Korea and Singapore followed a similar pattern of economic
growth. India has joined the group of big industrial powers, although it suffers
from the problems of income distribution and over-population. Admitting the
validity of the wide-spread scepticism as to the value of growth in GNP as an
indicator of economic well-being (i.e. problems of income distribution, non-
economic factors determining quality of life, etc.), a particular type of rapid
economic growth is transforming the environment as well as the mode of living
of the inhabitants in many parts of Asia.8 In most countries, average household
income has substantially increased.g
If during the 196Os, realization of human rights was claimed by some to
depend on the achievement of rapid economic development, one may wonder
what humanrights implications should be drawn from the rapid socio-economic
transformation of the 1970s. Either the human rights situation should already
have improved very substantially or be about to do so, or it must be conceded
that much more is involved in the realization of human rights than rapidly
increasing overall economic growth rates.
The state of human rights in Asia

(i). THE RATIFICATION 0F INTERNATIONAL INSTRUMENTS
Asian governments continue to show a degree of reluctance to be actively

engaged in human rights issues, especially at the international level. Although
the record of ratification of international instruments is not the best indicator

of a countrys concern for international promotion and protection of human
rights, it does provide some guide.
As the table of ratification on page 000 shows, only India, Japan, Sri Lanka
and Mongolia have ratified both the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The Philippines has ratified the latter only. No Asian country
has ratified the optional protocol, as of 1 January 1982.
Another indication is provided by the extent to which countries of the Asian
region have ratified international labour conventions as adopted by the ILO. A
survey undertaken by the IL0 in 1980 indicated that, on the whole the
ratification pace for Asia remains slower, and the regional average. . is lower
than corresponding figures for other regions. This position is also reflected
in the number of Asian ratifications of certain of the Conventions which are
categorized by the IL0 as relating to basic human rights. Thus for example the
most widely accepted IL0 standards among those concerning basic human
rights are the two Conventions relating to forced labour: the Forced Labour
Convention, 1930, (N 29) and the Abolition of Forced Labour Convention 1957
(N 105). As regards the first of these, the rate of ratification by Asian
countries is comparable to that of the general IL0 membership, while the rate
is noticeably lower (by some 25%) for the second Convention. Similarly, while
the Right to Organize and Collective Bargaining Convention 1949 (N 98) has
been ratified by a majority of Asian countries, the Freedom of Association and
Protection of the Right to Organize Convention 1948 (No 87) has been ratified
by only one third of the Asian countries.
(ii). THE HUMAN RIGHTS SITUATION
In terms of civil and political human rights the situation in Asia is perhaps
neither better nor worse than in other developing regions. While no authorita-
tive assessment can be provided it is relevant to note that the 1980 annual
report of Amnesty International makes specific reference to the vast scale of
political imprisonment in Asia-which usually takes the form of detention
without trial-. In some instances, according to the report, political pris-
oners are detained for many years in re-education camps on the grounds that
the release of such prisoners would constitute a threat to the security of the
state. The phenomenon of the disappearance of political prisoners in certain
Asian countries was also noted in the report. A variety of other problems has
also been experienced in Asia in recent years.
It is, however, in the field of economic, social and cultural rights that the
human rights situation in Asia is most tragic. Poverty is rampant in a number
of Asian countries. On the basis of World Bank statistics and analyses, almost
800 million human beings throughout the world lived in abject poverty in 1974.
They subsisted in conditions of malnutrition, disease, illiteracy and squalor
beneath any reasonable standard of human decency. Of that total 580 million
658 Hiroko Yamane
(74 per cent) were in Asia (excluding China). As a recent IL0 report concludes,
global poverty is thus disproportionately Asian poverty. Using the total
Asian population (excluding China) as the base, about half (53 per cent) of the
population existed in absolute poverty in 1974. The outlook for the future, in
terms of the realization of economic, social and cultural rights, is equally
distressing. Thus, according to the IL0 there are ominous indications that
Asian poverty will remain massive throughout the 1980s.
Secondly, the rise of the average standard of living did not necessarily lead
to the improvement of respect for human rights. At the same time, the
problems of poverty, hunger, unemployment and underemployment still pre-
vail in large sections of the population and have disastrous consequences for
human rights. The press in most Asian countries is subject to some form of
government pressure or to the strict self-restraint of journalists. In addition,
legislative and administrative measures to curtail the right to liberty and
security of persons and the right to a fair trial were adopted and the imposition
of martial law and the consequent suspension of legal safeguards occured in
several cases. These measures were usually attributed to the need to over-
come extreme political and ideological tensions.
While these perennial human rights problems remain of major concern,
new types of human rights problems have emerged as a result of rapid
economic expansion. The following two issues are indicative of their scope and
nature:
(a) environmental pollution affecting massive numbers of people;
(b) effects of the activities of multinational corporations on the implementa-
tion of human rights, such as the right of peoples to self-determination and to
permanent sovereignty over natural resources, and the right to cultural identity.
The scope of the present chapter is unfortunately limited to non-socialist
countries, due to the radically different approach of the socialist countries to
human rights and development and to the lack of sufficient data.
Pollution
Regarding environmental pollution, the Asian experience shows: *
(i) The difficulties which arise in reconciling the economic objective of rapid
growth and promotion of the right to health, particularly in densely populated
countries; (ii) the importance of the right to freedom of expression, and the
press, freedom of association in solving problems through solidarity and the
victims of violations who are not readily identifiable; (iii) the possibilities of
establishing judicial means to oppose the violation of human rights by private
entities including private enterprises which constitute the third power next to
the State and individuals. In Japan, for example, the Basic Law for Environmen-
tal Pollution Controll of 1967 made it possible to sue private enterprises on
civil grounds, and the Criminal Act concerning Environmental Pollution of
1970, made it possible to charge private enterprises as well as the Government
with criminal offences, wherever their responsibility is involved. Since the late
1960s the protection of victims of pollution has become possible through a
firmly established legal procedure, imposing joint obligations upon the State
and private enterprises. l5 In countries where the expansion of private enter-
prise is viewed as a factor promoting welfare and progress, these types of
measures constitute an indispensable tool for checks and balances in the
development process.
Pollution is not only a problem for economically developed societies. It also
affects profoundly the life of people in developing countries in a process of
rapid industrialization. In countries where fundamental individual rights are
not ensured and where masses of people live in perpetual poverty and fear, it is
difficult to expect environmental awareness and action to take the same form
as in richer countries. Monitoring pollution, identifying the causes, and taking
appropriate action against the polluting agents relies largely upon the exercise
of such individual rights as freedom of the press, expression, association and
the right to assembly. l6 Solidarity of the victims (usually only the victims have
the right to complain under existing institutions) is possible only when individ-
uals are free from fear. Only then will participation of all people in the decisions
that affect their lives be possible.
Transnational corporations
Other chapters in this textbook dwell on the provisions of the Charter of the
United Nations which define the objectives of the Organization in the fields of
economic and social progress and respect for fundamental human rights.17
These objectives and the means to be used to obtain them were progressively
given greater precision in individual documents such as the programmes for
the United Nations Development Decades, *the New International Economic
Order, and the Declaration on Social Progress and Development, and
constitute a framework of principles for judging the conduct of States, inter-
governmental organizations and other entities.
Special status is given in these instruments to the rights of peoples to
self-determination and to permanent sovereignty over natural resources,
which are set out in greater detail in other documents.21By virtue ofthe former
right, peoples freely determine their political status and freely pursue their
economic, social and cultural development.2
More recently, Article 1 of the Charter of Economic Rights and Duties of
States affirms that: Every State has the sovereign and inalienable right to
choose its economic system as well as its political, cultural and social systems in
accordance with the will of its people, without outside interference, coercion or
threat in any form whatsoever.
Article 2, paragraph 2, stipulates that the laws and regulations of the State
concerned are authoritative in regard to foreign investment, the activities of
transnational corporations, and in determining the compensation to be paid in
660 Hiroko Yamane
the event of nationalization, expropriation or transfer of ownership of foreign

property.z4
In fact, the international community has become increasingly concerned
about the impact of transnational corporations on the exercise of human rights,
especially in developing countriesZ5 where the institutional framework often
does not allow a sufficient guarantee of host countries protection of their
natural and human resources. In 1974, the UN General Assembly called for the
formulation, adoption and implementation of an international code of conduct
for transnational corporations,26 a responsibility which was subsequently
entrusted to the Commission on Transnational Corporation? which, in turn,
set up an Intergovernmental Working Group to prepare a draft code. In
November 1977, the Governing Body of the International Labour Organisation
adopted the Tripartite Declaration of Principles concerning Multinational
Enterprises and Social Policy. Other regional organizations and non-
governmental organizations have also elaborated general codes of conduct for
transnationals.29
Much more study3 needs to be undertaken to assess the benefits and costs of
the effects of multinationals, taking into consideration the specific conditions
prevailing in each host country. In some Asian States, no less than elsewhere,
abuses of their power by transnationals have emerged as important human
rights problems, as they tend to undermine the conditions conducive to the
promotion and protection of various human rights. For example, certain
dangerous industrial processes and products (chemical drugs and nuclear
waste), which have been banned abroad, are sometimes introduced due to the
inability of host governments to undertake the necessary tests or gather the
relevant technical data; inappropriate exploitation of land and natural re-
sources chases away the peasant or particular ethnic groups whose legal status
of ownership was ill-defined; destruction of the traditional community life of
certain tribes which have existed outside the modernization process,32 and use
of particular forms of labour. Thus, even where benefits of transnationals
generally asserted by the orthodox school of economics i.e., possibility of
technology transfer, rise of productivity, generally higher wage rate com-
pared to local wages, and rise of employment levels, are actually achieved they
are often more than offset by practices which amount to, or facilitate human
rights violations. It may be noted that these problems will not generally give
rise to specific legal action by governments against the corporations since the
former are generally disposed or obliged to encourage the activities of the
latter. Thus in many respects it is possible to attribute the adverse conse-
quences of TNCs activities to the internal political and socio-economic struc-
tures of the host countries.
The above new human rights issues are not peculiar to Asia, but are common
to all industrializing countries swept by a process of rapid socio-economic
change. In Asia, however, the institutional mechanisms for the defence of the
rights of individuals in the face of this process of social change was particularly
weak for the following reasons:
(a) Before the rapid economic expansion, Asian societies were essentially
traditional, although certain Western liberal thinking permeated intellectual
life and Western legal systems and concepts were adopted. However, the idea
of individual rights was not firmly implanted, since people continued to iden-
tify law with moral duties.
(b) Economic growth was made possible by channelling intelligence, disci-
pline, and the work ethic of the masses into economic activities. However
economic development does not in itself open up the possibility of enjoying
individual liberty and human rights.
(c) Economic expansion in Asia was not accompanied by the establishment
of institutions for the defence of human rights. Legal systems which can be
used for this purpose are generally not at the disposal of the masses. In certain
countries where the independence of the judiciary and other human rights
safeguards are not guaranteed, the response of the people often takes the form
of subversion which, in turn, engenders fear on the part of those in power,
who, in turn, strengthen their repressive apparatus. The institutional safe-
guards for human rights are thus eroded in this vicious circle.
2. VARIOUS VIEWS AND TYPES OF ACTION FOR THE PROMOTION

AND PROTECTION OF HUMAN RIGHTS IN ASIA: OLD AND NEW
Does the present situation in Asia leave any hope for the future of human
rights in the region? While the dialectics between human rights and socio-
economic conditions, as well as between human rights and traditional values
complicate the process, there is nevertheless a marked trend towards im-
proved implementation of human rights in Asian countries. First of all, their
implementation is not completely determined by the prerequisite physical
conditions. Secondly, traditional values can be used creatively to find new
ways and imaginative means for realizing human dignity and rights. The
aspirations of people for life, liberty and security are universal, no matter what
moral, cultural and political constraints are imposed upon them. Various
methods for the promotion and protection of human rights in Asia have been
adopted. These vary according to the specific nature of the human rights
problems concerned, the institutional restraints which operate and the socio-
logical background of those who fight for human rights (types of education,
cultural values, social status, etc.). The two main approaches which have
emerged are the use of legal or quasi-legal remedies and political activism.
Legal remedies
The first approach aims at the protection of human rights through normal
judicial remedies. Recourse to judicial remedies is increasingly common espe-
662 Hiroko Yamane
cially in countries where the independence of the judiciary is guaranteed. With

sufficient respect for the spirit of the law on the part of legislators, decision-
makers and adjudicators, this approach is a useful technique for protecting the
rights of individuals, even under certain emergency measures. In areas where
poverty and illiteracy prevail, free legal aid groups play a crucial role in
helping the people to resort to legal remedies. The number of these legal clinic
services is increasing in South and South-East Asia.4
Quasi-legal remedies
Normal judicial remedies can be supplemented by a network of non-legal
remedies. The strength of the latter is that those who are culturally and
morally inhibited about taking formal legal action can obtain justice by seeking
a friendly settlement. In a culture alien to the action of militant assertion of
individual rights, and where non-conflictual human relations are important,
these provide for reconciliatory measures which attempt to satisfy individual
dignity (basic motivation) without destroying the idea of the harmony of the
community (cultural values). An example of the means by which such remedies
may be pursued is the existence of the institution of an ombudsman in Hong
Kong, India (State of Maharastra), Japan (City of Yokohama) and Nepal.
A similar institution but on a much larger scale, is the Civil Liberties Bureau
within the Ministry of Justice in Japan. 35 These bodies have no powers to
prosecute, but they are able to take action with regard to a wide range of
human rights infringements, by public officials or by private individuals or
organizations. The sponsorship by the Ministry of Justice also makes it easier
for an authority-minded people to express their human rights problems.
Human Rights Activism

An alternative to the use of legal and quasi-legal approaches, is the adoption
of a more activist, even militant approach to voicing human rights complaints.
Such a response has been used on occasion by, inter alia, trade unions and
other types of pressure groups, religious missionary movements, and political
parties. In countries where the judiciary lacks independence, especially in
constitutional matters, and adopts an extensive interpretation of the principle
of national security, the role played by these activist organizations is impor-
tant. They can be particularly effective in areas of challenge to the enjoyment
of human rights where a purely legal and formalistic conception of justice does
not get to the heart of the problem. This is often the case in matters relating to
the activities of transnationals, destruction of the environment or the perpetu-
ation of gross inequities in income and wealth distribution. It is in this connec-
tion that the idea of peoples rights has developed in Asia as elsewhere. If a
community is subject to domination (examples may include an oppressed
minority or a country existing under a neo-colonialist yoke), not only are the
human rights of the individual violated, but so too are those of the people, the
collectivity. Advocates of peoples rights generally differentiate these two
dimensions in the struggle for human rights: the rights of the individual and
the rights of peoples. 36 Although these dimensions are interrelated, they
stress the importance of the liberation of oppressed communities and the
achievement.of social transformation as a prerequisite to respect for individual
rights,. They reject the slogan of economic development imposed from above:
without the implementation of peoples and individual rights, development
will remain merely an ideology for legitimizing the status quo. The idea of
peoples rights is thus a militant expression of those who side with the masses
of people whose human rights concerns cannot be dealt with only through legal
or quasi legal remedies.
These different approaches and movements operating in Asia are not mutu-
ally exclusive. Depending on the nature of the problems, they reinforce each
other. It is important to indicate that activists generally agree that, whatever
the nature of human rights dealt with, the promotion and protection of human
rights in Asia depends on the degree to which they succeed in awakening the
individual consciousness. Only individual awareness can free people from all
forms of ideology, values or ideas which seek to justify the dominance of power
and the use of fear. If some of them advocate peoples rights, it is not
necessarily only to highlight the collectivity: it is a concept which leads inevi-
tably to the realization of individual rights as both a beginning and an end.
3. POSSIBILITIES OF REGIONAL CO-OPERATION FOR THE PRO-

MOTION AND PROTECTION OF HUMAN RIGHTS IN ASIA
It is not enough to rely upon emotional commitments to human rights. The time for
generalities has long since passed, the time now is for specifics.37
The above overview of the approaches to human rights in Asia is far from
comprehensive in terms of both the geographical coverage and of the issues
examined. There are important human rights issues in the region which this
chapter has neglected: for example, womens status and refugee problems.
The increasingly diversified situation in Asia does not allow any hurriedly
made synthesis for the whole of Asia.
The question of Asian regional co-operation in the field of human rights is
difficult because of the extreme diversity of situations. Several countries are
reluctant to apply uniform criteria for judging the situation of all the Asian
countries, given the different political institutions, levels of economic devel-
opment, legal traditions, and cultural heritage of each country. Unlike the
European Convention on Human Rights which was made possible by a relative
homogeneity of political institutions, a common conception of the respect of
human rights and the will for European integration by the Member States,
Asian countries have fewer common denominators for establishing a regional
mechanism for the protection of human rights.
664 Hiroko Yamane
Overview of existing regional institutions in Asia

The development of institutions for regional co-operation in Asia reflects the
complexity of geo-political interests which divide rather than unite the Asian
countries. Approximately four types of co-operation have developed in Asia:
(i) co-operation to combat colonialism and neo-colonialism represented by the
non-aligned movement; (ii) military treaty organization such as the SEAT0;3g
(iii) political and/or economic co-operation such as the Association of South
East Asian Nations (ASEAN) and the Asian Development Bank: and (iv)
UN related regional organizations such as the ESCAP.42
Other forms of regional or sub-regional co-operation are of a specific and
limited character and have little potential for developing into institutions for
the promotion of human rights objectives.
In the Asian region, where development is the primary concern of govern-
ments, ESCAP plays an important role in regional co-operation. In its efforts
to provide information, to undertake research and to train staff, ESCAP could
in the future incorporate the subject of human rights as an integral part of its
activities.43
Prospects for institutionalixed co-operation in the field of human rights

The absence of a regional institution having a general competence (like
the OAU and OAS) and the absence of the will for regional integration makes it
difficult for Asia to establish a regional institution for the promotion and
protection of human rights.
A regional seminar of Member States44 of the Asian region, which will
consider appropriate arrangements for the promotion and protection of human
rights, will be convened by the Secretary-General of the United Nations in
1982. This initiative could be of crucial importance in formulating an original
solution, adapted to the Asian reality.
Other initiatives for co-operation for the protection and promotion of human
rights in Asia have come rather from private organizations of lawyers, univer-
sity professors, and human rights militants, as well as religious group~.~~ One
such example of the role of a non-governmental initiative in establishing
regional co-operation for the protection and promotion of human rights was the
action by the Asia and Pacific branch of Amnesty International in holding in
September 1976 its First Pacific Regional Conference in Tozanso, Japan.46 The
conference discussed the possibility of setting up regional machinery to pro-
vide protection from violations of human rights. Another example is the
Permanent Standing Committee on Human Rights created in August 1979
within Lawasia. Lawasia is a professional association of Asian and Western
Pacific lawyers (private lawyers, government lawyers, judges and law teachers),
formed in August 1966 at a Conference called by the Law Council of Australia,
in Canberra. The association comprises Asian and Pacific countries (Australia,
Fiji, Hong Kong, India, Indonesia, Japan, Republic of Korea, Malaysia,

Nepal, New Zealand, Papua-New Guinea, Philippines, Singapore, Sri Lanka,
Thailand). The objectives of the Standing Committee are:
(i) to work towards the establishment of a Centre or Centres for Human
Rights in the region, for the promotion, propagation and protection of human
rights in the region, by research, education, the use of mass media and the
publication of literature concerning human rights, and by other means;
(ii) to initiate, as a matter of priority, steps towards the ultimate establish-
ment of an Asian Commission for Human Rights in the region;
(iii) to take steps towards the implementation of the principles of the Uni-
versal Declaration of Human Rights in specific form within the region;
(iv) to promote, by education and publicity, awareness of human rights
among the members;
(v) to prepare and publish reports on matters affecting human rights within
the region;
(vi) to urge the ratification of the International Covenants on Human Rights
by governments within the region, and to work towards adherence to other
UN instruments in the field of human rights including those concerning law
enforcement and refugees;
(vii) to safeguard the independence and freedom of judges and lawyers in
the discharge of their duties in matters concerning human rights.
This effort is in the spirit of the guidelines elaborated at the UN Seminar on
the establishment of Regional Commissions on Human Rights, with special
reference to Africa (Monrovia, Liberia, lo-21 September 1979) and also re-
sponds to General Assembly Resolution 341171of 17 December 1979 which calls
for suitable regional arrangements for the promotion and protection of human
rights. In addition it constitutes a useful follow-up activity to the Unesco
International Congress for the Teaching of Human Rights (Vienna, Austria,
12-16 September 1981).
The weakness of the project lies in the fact that the initiative is purely
non-governmental. It is also a project formulated primarily by lawyers edu-
cated in the West. The adoption of Western models, particularly that of the
European Convention on Human Rights as already proposed by organizations
like the International Council of Jurists47 would be poorly suited to operate in
the vast and complex reality of Asia.
Conclusion
On the basis of the foregoing survey of Asian experience in the field of
human rights, the following points can be made;
(i) Economic, social and cultural rights are interdependent with civil and
political rights; the full enjoyment of one set depends on the enjoyment of the
other. This point is reaffirmed in UN General Assembly Resolution 32/13048
which enumerates the guiding concepts for future UN work in the field of
666 Hiroko Y amane
human rights. The Asian experiences bear witness to the indivisibility and
interdependence of human rights.
(ii) The situation of every country, with respect to human rights, is differ-
ent in a variety of ways. This warns us against all assumptions as to the
existence of general panaceas.
(iii) The diversity of national situations renders all measurement of human
rights performance according to uniform criteria, illusory or misleading in
Asia. For example, income distribution can be an economic indicator of the
conditions facilitating the observance of human rights, but a perfectly egalitar-
ian society in the economic sense does not necessarily mean a high degree of
human rights implementation.
(iv) Action to promote and protect human rights should vary from one
country to another according to its particular situation, but it should always
take into account the indivisibility of human rights. Asia offers a rich terrain
for a new synthesis in this regard.
The Asian experience also shows that the aspiration for self-respect, self-
expression, independence and a better life is universal and that the fight
against the abuse of power is a constant factor in Asian reality. It is undeniable
that the concept of human rights as expressed in the Universal Declaration of
Human Rights is increasingly inspiring the mind and action of those who work
toward these objectives. The philosophical foundations of these movements
can diverge, but the underlying aspirations are common.
It is true that the Western ways and means of protecting human rights are
not ideally adapted to Asian cultural values and institutions. This is specially
true in the societies where the concern for the community is much greater than
the concern for the individual. If belonging to a collectivity takes overriding
importance, there are real difficulties and psychological inhibitions in affrm-
ing the rights of the individual on a priority basis. If such is the case, the
solution is not to impose a Western model of human rights protection, but to
formulate original ways and means of ensuring human rights adapted to each
situation. Above all the education of people enables them to develop fully their
self-respect and to liberate them from the fear of power and authority must be
a fundamental element in any attempt to make human rights institutions
functional and effective.
Society is not immutable, nor are cultural values. It would be an error to
consider the conflicts between human rights and cultural values statically.
Much more creative endeavours are needed to develop appropriate institu-
tions for human rights promotion and protection in Asia.
NOTES
1. For the purpose of this chapter, we are using historical, cultural and political criteria to
define the Asian region. It excludes the countries of Western Asia, Arab Slate, the Pacific and
Oceania, and includes Afghanistan, Bangladesh, Bhutan, Burma, China, India, Indonesia,
Japan, Kampuchea, Malaysia, Mongolia, Nepal, Pakistan, Philippines, Republic of Korea,

Democratic Republic of Korea, Singapore, Sri Lanka, Thailand and Vietnam.
2. International Commission of Jurists The Dynamic Aspects of the Rule of Law in the
Modern Age. Report on the proceedings of the South-East Asian and Pacific Conference of
Jurists, Bangkok, Thailand, February 1965, p. 13.
3. UN Document STITAOIHRIZI
4. Ibid.
5. Some of the working papers from this Round Table are reproduced in International
Social Science Journal, Vol. XVIII, no. 1, 1966, Unesco, Paris.
6. On the question of philosophical and cultural bases of human rights, see Human
Rights: Comments and Interpretations: A Symposium, edited by Unesco with an Introduc-
tion by Jacques Maritain, Greenwood Press, Westport, Connecticut, 1949.
7. Former Senator, Jo& W. Diokno, untitled lecture, International Council of Amnesty
International, Cambridge, 21 September 1978, pp. 11-12, mimeo.
8. Data on fhis subject may be found in the table showing variation in volume of GNP in
UN Statistical Yearbook, 1979. The increase in GNP in most Asian countries was above 6.0%
(Burma + 6.70%, China + 7.0%, Japan + 6.00%, Korea, Peoples Democratic Republic + 8.10%,
Korea,Rep. of, + 7.40%, Malaysia + 7.50%, Pakistan + 6.00%, Singapore + 9.20%, Thailand
+ 6.60%) which is higher than in most countries in the world.
9. Statistical Yearbook, United Nations Economic and Social Commission for Asia and
the Pacific (ESCAP) 1979.
10. Application ofZL0 standards, Report of the Director General, Report 1 (Part 2) to the
IL0 Ninth Regional Conference, Manila 1980 (Geneva, ILO, 1980).
11. Amnesty International Report 1980 (London, 1980) pp. 173-175.
12. Asian Development in the 1980s: Growth, Employment and Working Conditions;
Report of the Director-General, Ninth Asian Regional Conference, Manila, December 1980
(Geneva, ILO, 1980).
13. Most reporting and writing on Asia and human rights stresses the perennial human
rights problems. See for example: Human Rights Problems in Asia by L. Kadirgamar, in
Summaries of Lectures of the Sixth Study Session, July 1975, International Institute of
Human Rights; Amnesty International Reports; Minority Rights Groups Report; Country
Reports on Human Rights Practices submitted to the Committee on International Relations,
U.S. House of Representatives and Committee on Foreign Relations, U.S. Senate by the
Department of State.
14. It is significant that in Japanese law, as in English common law, environmental
pollution is called public nuisance (Ko-gai) to give it a public character even if the pollution is
caused by private enterprises.
15. The most prominent instances of the application of this legislation concern diseases
caused by mercury (Minamata) and certain pharmaceutical products (Sumon). Jurist No. 458
(Special issue on Environmental Pollution), August 1970, Jurist No. 548 (Special issue on
Human Rights and Medicine), November 1973, Tokyo, Yuhikaku.
16. The right to demonstration (which is not exactly the equivalent of the right to assem-
bly), although it has been used extensively in the anti-pollution movement, is not explicitly
included in the Universal Declaration of Human Rights.
17. See Charter of the United Nations, Art.1, 55 and 56. as discussed particularly in
Chapters 5, 8, 10.
18. First Decade, General Assembly resolution 1710 (XVI); Second Decade, General
Assembly resolution 2626 (XXV); Third Decade, General Assembly resolution 35156An-
nex I.
19. General Assembly resolutions 3201 (S-VI) and 3202 (S-VI) of 1 May 1974.
20. General Assembly resolution 2542 (XXIV) of 11 December 1961.
21. See: Declaration on the Granting of Independence to Colonial Countries and Peoples
(General Assembly resolution 1514 (XV) of 14 December 1960)and the resolution on Perma-
668 Hiroko Y amane
nent Sovereignty of Natural Resources (General Assembly resolution 1803 (XVII) of 14

December 1962.)
22. Resolution 1514 paragraph 2.
23. General Assembly Resolution 3281 (XXIX) Dec. 12, 1974, UN Dot. A/9631 (1975).
24. Ibid.
25. Transnationals concentrate their activities in developed countries. 40% of their direct
investment is in four countries (Canada, USA, Federal Republic of Germany, UK) with only
one quarter of their investments in developing countries. Transnational Corporations in
World Development: a Re-examination. United Nations Publication, Sales No. E. 78. II A.
5., para. 125 et seq.
26. General Assembly resolution 3020 (S-VI) of 1 May 1974.
27. Economic and Social Council Resolution 1913(LVII) of 5 December 1974. This resolu-
tion was adopted by 48 States (12 African, 11 Asian, 10 Latin American, 5 Eastern European,
10 Western European and others).
28. The Tripartite Declaration recognizes the substantial benefits which multinational
enterprises can make to development as well as the potential abuses of their power and has
adopted a progressive view of its purpose which is to: Encourage the positive contribution
which multinational enterprises can make to economic and social progress and to minimize
and resolve the difficulties to which their various operations may give rise taking into account
the United Nations resolutions advocating the Establishment of a New International Eco-
nomic Order.
29. Guidelines for Multinational Enterprises and the procedures on those guidelines
adopted in 1976by OECD (OECD publication International Investment and Multinational
Enterprises, Paris 1976); the International Chamber of Commerce adopted in 1972 Guide-
lines for International Investment (Paris 1972)and in 1975the International Confederation
of Free Trade Unions adopted its Multinational Charter (Brussels, 1975) Parliamentary
Assembly of the Council of Europe, resolution 639 (1976), IME (76), annex II, calls upon
corporations to respect human rights in all countries in which they operate. The Foreign
Ministers of the European Economic Community in September 1977 agreed to a voluntary
code of conduct for enterprises based in EEC countries with subsidiaries, affiliates or
representative offices in South Africa.
30. Unesco has carried out the following studies: The Impact of Trunsnational Book
Publishing on Intellectual Knowledge in Less Developed Countries, by K. B. Smith; Report
on Methodologyfor Measuring the Im,pact of Advertising by Transnational Tourism Corpo-
rations on Socio-cultural Values in the Developing Countries, by M. Brigaud Robert; Report
on Methodology for Research into the Influence of Transnational Corporations on the
Educational Systems of Developing Countries by A. Cartapanis, W. Experton and J. L.
Fuguet; The Cultural Impact of Multinational Corporations in Singapore by K. P. Wong.
31. Several industrial countries allow hazardous products or substances that they have
banned or restricted for domestic use to be freely exported to other countries. There have
been several well-documented incidents of the export of banned consumer products, pesti-
cides, and toxic chemicals, contaminated food, ineffective or dangerous drugs, and toxic
chemical wastes. (See Exports ofHazardous Products: Hearings before the Subcommittee on
International Economic Policy and Trade of the Committee on Foreign Affairs, U.S. House
of Representatives, 96th Gong., 2nd sess. (1980) and C. Medawar, Injury or Insult: An
Inquiry into the Marketing and Advertising of British Food and Drug Products in the Third
World (1979). Concerned by this problem, the General Assembly at its thirty-fourth session
on 17 December 1979, addressed this practice by adopting a resolution urging that countries
exchange information on banned hazardous chemicals and unsafe pharmaceutical products
and discourage, in consultation with importing countries, their exportation. It requested that
the Secretary-General submit a report on the subject to the next session of the General
Assembly and appealed to all United Nations organs, organizations and bodies concerned to
assist in the Secretary-Generals report. (General Assembly resolution 341173,17 December
1979). See document E/CN.4INGOI310,19 January 1981(Commission on Human Rights, 37th

session) The export of dangerous products and substances; human rights implications.
32. See for example, Report submitted to the UN Centre on Transnational Corporations
(CTC) and Economic and Social Commission for Asia and the Pacific (ESCAP) by the Third
World Studies Centre, University of the Philippines, 1979. Bibliography on the subject is
compiled by ESCAP Library Transnational Corporations: a select bibliography with partial
focus on the ESCAP region, N.Y. 1979 (ESCAP/LIB/SER.D/l).
33. Masami, Ito, The problems of human rights in Asian traditions, paper submitted at
the Unesco Round Table on Human Rights, Oxford, supra.
34. Legal assistance services are active in India, Indonesia, Malaysia and the Philippines
related to the International Legal Aid Association.
35. The Civil Liberties Bureau, created in 1948, functions through Civil Liberties Com-
missioners. Appointed by a process of representative selection, they are volunteers who must
meet requirements of moral character and basic knowledge of human rights. In 1979, Japan
counted over 10,500Commissioners throughout the country. Over a half of the casesannually
submitted (6,000 to 10,000 cases) are settled.
36. See, for example, the speech made by an Asian lawyer at the Sixth Conference of
Lawasia (Colombo, Sri Lanka, 27 to 30 August 1979) in which he said . there is
complementarity-between the rights of the people and the rights of individuals: indeed
unless rights are recognized in the people as a community, the rights of individuals would not
be secure, for there would then be neither legal nor moral basis for the right to revolution
against tyranny and oppression, whether by a government installed by external colonialism
or one born of internal colonialism.
37. Report of the discussion session on International Institutions for the Protection of
Human Rights, 6th Lawasia Conference.
38. See the preamble of the European Convention of Human Rights, discussed in chapter
16.
39. The Manila Pact of 8 September 1954created the South East Asia Treaty Organization
(Parties: Australia, France, New Zealand, Philippines, Thailand, U.K., U.S.A.).
40. The ASEAN, created in 1967 (Indonesia, Malaysia, Philippines, Singapore, Thailand)
was a significant start in promoting sub-regional co-operation.
41. The Asian Development Bank was created in Manila in 1966in support of the develop-
ment objectives of the developing member countries (DMCs) of the Asian and Pacific region.
As of January 1982, the Member States count 43, including the ESCAP countries and those
outside Asia and Pacific region. Apart from lending activities, the Bank administers technical
assistance and a Training Programme on Development Banking for the Region. See Asian
Development Bank: Annual Report 1979.
42. United Nations Economic and Social Commission for Asia and the Pacific serves 2.4
billion people (in 1979), or more than 55 per cent of the worlds population. The ESCAP region
extends from Iran in the west to Mongolia in the north, Japan in the north-east and the Cook
Islands in the south-east. To assist Member Countries in solving their economic and social
problems, ESCAP has developed programmes at three levels: at the regional level, to combat
region-wide problems; at the sub-regional level; and at the country level, by assisting
individual Governments in planning and implementing balanced development programmes.
Although ESCAP does not itself provide capital resources, it has helped to establish institu-
tions to attract funds for regional and subregional projects, which, in turn supply develop-
ment aid.
43. This would accord with the approach adopted in the Declaration on Social Progress
and Development proclaimed by the General Assembly of the United Nations on 11 Decem-
ber 1969 (Resolution 2542 (XXIV)).
44. United Nations General Assembly Resolution 351197.
45. These movements are mostly Christian (Churches Commission on International Af-
fairs (World Council of Churches), World Student Christian Federation, Christian Confer-
670 Hiroko Yamane
ence on Asia (Asia Pacific) and Centre for the Progress of Peoples) but recently Islam
reformists became actively concerned by human rights (for example Muslim youth movement
ABIM in Malaysia).
46. Report of the First PacijYc Regkmal Confwence of Amnesty International, ICMlSeptember
1976, NS 132176.
47. See Bangkok, The Dynamic Aspect of the Rule of Law in the Modern Age supra.
48. Resolution of the General Assembly at its Thirty-second Regular Session(20 September-
21 December 1977).
22 Toward a Specific International
Human Rights Law
Karel Vasak
It hardly needs to be said that municipal law is characterized by the exis-

tence, within the framework of the State, of political power which assumes
the threefold function of defining the rules of life in society (legislative func-
tion), ensuring that they are applied (executive function) and providing a
means of dealing with any disputes that might arise (judicial function). It is a
law of integration and subordination which gives rise to a single legal sys-
tem, the subjects of which, both active and passive, are subordinated to the
power of the State.
International law, for its part, is characterized by the existence of sover-
eign States: as has often been said, it is a law of co-ordination seeking to
become a law of co-operation among States, by means, in particular, of
international organizations at the world or regional level.
The international rules of human rights do not have the characteristics of
the law of subordination since, like all rules of general international law, they
are developed in the framework of an international community whose prime
characteristic is the existence of sovereign States. But those rules do not
come under, or rather, do not come solely under the law of co-ordination and
co-operation. Their object is precisely defined: they give rise to a law of
protection since, by virtue of all its norms and all its institutions, this law
is intended to ensure the individual of the enjoyment and observance of
a number of values considered to be common to the entire international
community.
More than thirty years after the Universal Declaration of Human Rights,
this law for the protection of the human being may legitimately claim to be an
autonomous branch of international human rights law. The foregoing pages
clearly show the extent to which it has been developed and made more
precise and the wealth of its actual content and connotations. The application
of the norms which give expression to that law raises particular problems, as
has been noted, and this is gradually bringing us to call into question certain
traditional categories and solutions of general international law, such as the
principle of reciprocity or the notion of conciliation, and to modify the methods
Karel Vasak
of interpretation of those rules, if not to reconsider all the solutions which one
is tempted, at first sight, to borrow from the law of nations.
For, being a law of protection, international human rights law will natu-
rally seek to establish a legal system for the protection of the individual in
international law. But its specificity does not necessarily consist in the fact
that it provides an unambiguous solution to that question, which has always
been hotly debated, of the individuals standing as a subject of international
law. This question may in fact be said to be immaterial to international
human rights law which seeks to achieve its purpose-the protection of the
individual-by means of rules, procedures and institutions which do not
necessarily call into question the traditional structures of international law,
and first of all the predominant place of the State as a subject of international
law. Defined in this way, the specificity of international human rights law will
appear both at the level of its norms and at the level of their implementation.
(a). Specijkity at the level of norms

International human rights law is an ideological law
International human rights law directly acknowledges its ideological char-
acter, but in so doing, it aspires to express an ideology which is common to all
mankind. Admittedly, some will endeavour to demonstrate that this law is of
Western origin and that it in fact expresses the needs for protection felt by a
minority which is able to afford the luxury of exercising all human rights. In
actual fact, human rights by no means reflect the historical conditions of a
particular society, for the values which they express are to be found, in one
form or another, in all political, social and religious doctrines. It is here that
mention should be made of the work of Unesco and, in particular, the admi-
rable volume, The Birthright of Man, which reveals the community of inter-
ests expressed by human rights. Other works of the same kind are currently
being carried out in respect of the various streams of religious thinking;3 but
it already seems clear that human rights form a genuine heritage common to
all religions and that, on this account, they are capable of providing a common
language for all Churches, thereby helping to reconcile them.
Being an ideological law, international human rights law is consequently an
unstable law in a process of constant change. How can one fail to note in this
connection the deep-seated aspirations of the peoples of the United Nations
to ensure that, to the human rights already guaranteed, be added rights of
which there was not even any mention ten years ago, namely the right to a
healthy environment and the rights to peace and development inter alia? We
might also note the demand for men and women to be granted the right freely
and consciously to determine the size of their families and the spacing of the
births of their children.*
International human rights law is a derived law

While the direct source of international human rights law is the Universal
Declaration of Human Rights, it in fact derives from national law, in contrast
Toward a Specific International Human Rights Law 673
with the law of nations which, so far as its main rules are concerned, is an
original law owing nothing to national law. The fact that international human
rights law thus derives from national law is but the direct consequence of its
ideological character. There is a very pronounced filiation between the Cove-
nant on Civil and Political Rights and the French Declaration of the Rights of
Man and of the Citizen of 1789 and the American Declarations. There is also
an obvious relationship between the Covenant on Economic, Social and Cul-
tural Rights and the Mexican Constitution of 1917 and a whole series of other
constitutional texts adopted after the First World War, including several
instruments of Soviet constitutional law.
It does not follow, however, that the law with which we are concerned here
is dependent on national laws. The right of men and women to determine the
number and spacing of their offspring was first formu!ated and proclaimed at
the international level before being legally incorporated into the various
national laws. It is even possible that, for reasons of contingency, this right
will never be able to be enshrined as such in most municipal laws, although it
will be proclaimed at the international level.
Being in the main a law derived from national laws, international human
rights law is playing, and increasingly frequently will continue to play, a
unifying role without enabling the various national laws regarding human
rights to be reconciled, harmonized and integrated within it. The unifying
effect produced in regard to the various national laws of the States parties to
the European Convention on Human Rights by the provisions of that Con-
vention provides too many illustrations of this fact for it to be possible to
refer to them all. But it is particularly interesting to note that in the case of
the right to the proper administration of justice, Article 6 of the Rome
Convention accelerated, if it did not cause, the process whereby States with
inquisitorial procedures, and those with accusatorial procedures, have brought
their practices more into line with each other. The same is true of the dura-
tion of provisional detention which, under Article 5, paragraph 3, of the
Rome Convention, should not exceed what is considered to be a reasonable
time, a notion which is vague but which, in the actual legislative practice of
the States parties to the Convention, tends in ordinary cases to correspond to
six months.
The unifying effect of international human rights law, curiously enough,
may even relegate to the background the political intentions specific to the
draftsmen of human rights treaties: conceived as an instrument of politi-
cal unification in respect of the European democracies, the Rome Con-
vention has been transformed, as a result of the copious case-law of its
organs, into an instrument ensuring the unification of the legal systems
governing human rights in the contracting States. Some may regret the
weakening of the ideological character specific to the European Convention,
but this was in fact inevitable, as its provisions indeed expressed the common
values of all mankind, and not values peculiar to the community of European
States.
674 Karel Vasak
International human rights law is a minimum law

Being derived from municipal law, international human rights law conse-
quently relates to a field which is continuing to be developed thanks to the
action of the legislative, governmental and judicial authorities of the different
States. The international conventions on human rights clearly foresaw this
situation, for they contain a provision which, constituting a true most-favoured-
individual clause, makes international human rights law a minimum law.
Article 5, paragraph 2, of the International Covenant on Civil and Political
Rights of 1966 provides, for instance: There shall be no restriction upon or
derogation from any of the fundamental human rights recognized or existing
in any State party to the present Convention pursuant to law, conventions,
regulations or custom on the pretext that the present Convention does not
recognize such rights or that it recognizes them to a lesser extent.5 This
clause authorizes and makes sacrosanct, in terms of the Covenant, any na-
tional and international protection of human rights greater than that pro-
vided for by the Covenant itself. Does it, however, prohibit a State or group
of States from limiting such protection, provided, of course, that the degree
of protection still ensured is at least as great as that provided for by the
Convention, the latter being an irreducible minimum? The problem has been
raised in exactly these terms in connection with a similar provision before the
IL0 Committee responsible for considering a complaint concerning non-
observance of an international labour convention. That Committee consid-
ered that the provision did not impose upon a State the obligation to maintain
in force provisions establishing more exacting norms than those provided for
by the Convention.
International human rights law is an objective law

A distinction is usually made between law-treaties and contract-treaties.
International human rights law, which is primarily a written law, since it is
embodied mainly in the fifty or so conventions referred to above, is funda-
mentally at variance with all idea of contract and, on this account, tends as
far as possible to ignore the principle of reciprocity so characteristic of gen-
eral international law.
The European Commission of Human Rights made no mistake about this
when, in its decision relating to the Austria v. Italy case, it vigorously
emphasized the objective character of international human rights law:7
Whereas it clearly appears. that the purpose of the High Contracting
Parties in concluding the Convention was not to concede to each other recip-
rocal rights and obligations in pursuance of their individual national inter-
ests, but to realize the aims and ideals of the Council of Europe, as expressed
in its Statute, and to establish a common public order of the free democracies
of Europe with the object of safeguarding their common heritage of political
traditions, ideals, freedoms and the rule of law. . .
Whereas, therefore, in becoming a Party to the Convention, a State under-

takes, vis-a-vis the other High Contracting Parties, to secure the rights and
freedoms defined in Section I to every person within its jurisdiction, regard-
less of his or her nationality or status; whereas, in short, it undertakes to
secure those rights and freedoms not only to its own nationals and those of
other High Contracting Parties, but also to nationals of States not parties to
the Convention and to stateless persons, as the Commission itself has ex-
pressly recognized in previous decisions; whereas it follows that the obliga-
tions undertaken by the High Contracting Parties in the Convention are
essentially of an objective character, being designed rather to protect the
fundamental rights of individual human beings from infringement by any of
the High Contracting Parties than to create subjective and reciprocal rights
for the High Contracting Parties themselves.
The objective character of international human rights law does not signify,
however, that the principle of reciprocity is completely excluded from the
field under consideration. Such is the case in respect of the conditions under
which human rights can be enjoyed. But, so far as the conditions of exercise
of those same rights are concerned, that principle could probably be brought
to bear, provided, however, that the minimum standard represented by in-
ternational human rights law is not endangered. Consequently, there is noth-
ing to prevent States from allowing the nationals of certain other States to
benefit, on a basis of reciprocity, from more liberal conditions of exercise of
their human rights than those generally applicable, provided that human
rights as such are respected.x
The principle of reciprocity may also be included among the conditions
governing the procedures of international human rights organs: thus, for
instance, the compulsory jurisdiction of the European Court of Human Rights
may be recognized by the contracting States, on the condition that such
recognition is reciprocal. It is to be noted that this condition is expressly
authorized by the Convention; if such were not the case, its legitimacy could
be held in doubt, given the very purpose of international human rights law.
(b). Specificity at the level of the implementation of norms

In general international law, international action in the broad sense of the
term can be initiated by States in all circumstances, provided that their
nationals are involved; it may also be initiated by non-governmental organi-
zations and by the individual, but only in exceptional circumstances. Interna-
tional action relates systematically to the individual, since what is involved in
international human rights law is more respect for human rights than set-
tling inter-State disputes, although expressed in typical international law
terminology.
There is nothing exceptional, a priori, in the fact that a State can initiate
proceedings against another contracting State respecting the observance of
conventions on human rights; but the fact that a State can do so on behalf of
individuals who are not its nationals illustrates the fact that international
676 Karel Vasak
human rights law is designed to protect persons without distinction, particu-

larly as to nationality. However, the international treaties on human rights
do not unanimously recognize that the State has the right ipso jure to take
action in the framework of the specific procedures provided for by them.
Thus, Article 41 of the Covenant on Civil and Political Rights declares that
the competence of the Human Rights Committee to receive and consider
communications from one contracting State against another contracting State
is optional, whereas Article 24 of the European Convention on Human Rights
stipulates in this connection that the jurisdiction of the European Convention
on Human Rights is compulsory.
The specific procedures provided for by the human rights treaties do not,
however, preclude the traditional procedures for settlement existing in in-
ternational law; but the proceedings will then take place within the tradi-
tional framework of international law in which it is a question of settling a
dispute arising from the interpretation or application of the human rights
treaty (see, for instance, Article 44 of the International Covenant on Civil
and Political Rights).
Action by non-governmental organixations is, in most of the treaties on
human rights, placed on the same footing as action undertaken by individuals
(see, for instance, Article 25 of the European Convention on Human Rights).
It is almost always optional in character in the sense that the State concerned
must expressly agree to the international human rights organ being compe-
tent to receive complaints against it.
A separate place must be reserved for action initiated in the framework of
the International Labour Organisation by organizations of employers or
trade unions or on the initiative of delegates of workers or employers to the
International Labour Conference. The Constitution of the IL0 (Article 24)
expressly provides for the possibility for associations of employers or workers
to make a representation against a State which, in the opinion of the associa-
tion, has failed to secure in any respect the effective observance within its
jurisdiction of any Convention to which it is a party; the Governing Body
remains in charge of the procedure to be followed. Similarly, in the case of a
complaint (Articles 26 to 29 and 31 to 34 of the Constitution of the ILO) and
in the case of the special procedure concerning the protection of trade union
rights, if the procedure is initiated by the delegates of employers or workers
to the Conference or by trade union organizations, at a certain stage that
procedure is thoroughly examined by the Governing Body which then has, in
effect, to assume responsibility for it. As a result, the proceedings in each
of these cases will be instituted not so much by the non-governmental organi-
zations against the State concerned as by the International Labour Organisation
against that same State. Once again, the objective and constitutional charac-
ter of human rights is clearly to be seen.
As far as the individual is concerned, he has, in my opinion, acquired once
and for all the right to set in motion the machinery for the implementation of
international human rights law. The individuals right of international action

is always exercised by means of the right of petition which, while not a human
right, is now the means employed for the international implementation of
human rights.
The right of petition has a protective significance which varies according to
its legal nature. Simplifying matters, four categories of petitions relating to
human rights can be distinguished:
Petitions which are merely gracious remedies of a humanitarian character,

insofar as the applicant can, at the very most, expect a reply from the
State against which the complaint has been lodged. Such petitions are
provided for by the American Declaration of the Rights and Duties of Man
of 1948, in its Article 24: Every person has the right to submit respectful
petitions to any competent authority, for reasons of either general or pri-
vate interest, and the right to obtain a prompt decision thereon. The
United Nations receives each year some tens of thousands of such petitions
and, for a long time, they were examined in accordance with the provisions
of Resolution 728 F (XXVIII) of the Economic and Social Council, the
examination consisting merely in the communication of summaries of
such petitions to the State concerned and, confidentially, to the Commis-
sion on Human Rights;
Petitions which, being appeals at law, are acts which institute legal proceed-
ings: mention may be made here, by way of example, of the applications
addressed to the European Commission of Human Rights in accordance
with Article 25 of the Rome Convention, and those to be brought before
the Inter-American Commission on Human Rights once the Convention of
San Jose has entered into force;
Petitions which, not being true appeals at law; nevertheless provide a means
of instituting proceedings of a mixed, administrative, judicial and diplo-
matic character: into this category should be placed, for instance, the
petitions addressed to the Inter-American Commission on Human Rights
which, concerning certain limitatively listed human rights, are examined
in accordance with the so-called special procedure and, probably, the
individual communications brought in accordance with the International
Convention on the Elimination of All Forms of Racial Discrimination
(Article 14) and the Optional Protocol to the Covenant on Civil and Political
Rights;
Petitions which, after being deemed to be admissible, become so many sources
of information on the general situation in respect of human rights in the
State concerned: these include, for instance, petitions examined by the
Inter-American Commission on Human Rights in accordance with the so-
called ordinary procedure, l2 together with communications coming within
the framework of ECOSOC Resolution 1503 (XLVIII).
678 Karel Vasak
From the point of view of general international law, the foregoing solutions
appear heretical since they do not make it possible to give a definitive answer
to the question whether the individual is a subject of international law. How-
ever, as was noted earlier, since international human rights law is a law of
protection, it matters little whether the entity to be protected-the individual-
has any standing as a subject of the rules of law, provided that means exist
whereby he may reassert his human rights. This analysis is particularly well
illustrated by the example of the inter-American system for the protection of
human rights since, as set up in 1959, the right of individual petition to the
Inter-American Commission on Human Rights is exercised ipsojure, without
the Commission having considered it necessary to request the State con-
cerned to recognize its competence to receive and consider individual peti-
tions. The same is true of the American Convention on Human Rights since
the individuals right to bring an application before the Commission, initiat-
ing in this case proceedings at law, is exercised ipso jure, whereas before a
State can exercise its right to act against another State, it must first of all
expressly recognize the competence of the Commission. Has the individual,
for all that, become a subject of international law in his own right? It may
legitimately be doubted, even given the existence of such institutional ma-
chinery; what is certain, however, is that he now has means of protection at
his disposal in the inter-American system.
Thus, while it avails itself of categories and notions borrowed from general
international law, international human rights law generally assigns to them a
specific significance and bearing. This specificity stems from the fact that it is
a law of protection since it is calculated to guarantee for the individual certain
values common to the whole of mankind.
Should one seek, however, to sever the links between general international
law and international human rights law? Nothing would be more dangerous.
The latter can function only on the basis of the former, for the very reason
that it must take account of that reality which is constituted by States; but it
is also in the interest of the former to allow its categories which are often all
too State-influenced to be open to human considerations derived from inter-
national human rights law: human rights will thus become a means of perma-
nently challenging general international law.
When all is said and done, the marriage between the two is a marriage of
reason which touches the essence of human existence: for deep in every
human being resides the eternal and irrepressible desire for freedom and
equality, the desire to be human, that is a brother or sister for all ones fellow
human beings.
NOTES
1. K. Vasak, Le droit international des droits de lhomme, RCADI, 1976, Vol. 174, p.
374 et seq.
Toward a Specific International Human Rights Law
2. The Birthright of Man, a selection of texts prepared under the direction of Jeanne
Hersch, Paris, Unesco, 1968, 591 pages.
3. See: the McGill Symposium of March 1974 on Judaism and Human Rights; the
reports prepared by the Saudi Arabian Grand Ulemas on Human Rights in Islam; the
Montreal Symposium of December 1973 on The Catholic Church and Human Rights; the
particularly abundant work of the World Council of Churches, and primarily the St. Polten
Consultation of October 1974; and the Final Report of a Meeting of Experts on the Place of
Human Rights in Cultural and Religious Traditions, Bangkok, December 1980, Unesco dot.
SS.79iCONF.607110 (1980).
4. Cf. Proclamation of Teheran, 1968, para. 16.
5. See also Article 23b of the American Convention on Human Rights and Article 60 of
the European Convention on Human Rights.
6. See the Report of the Committee set up under Article 26 of the Constitution of the
IL0 to examine the observance by Chile of Convention No. 1 and Convention No. 111
(provisional edition, p. 22). This report refers to other views which have been expressed
along the same lines.
7. ECHR Yearbook, Vol. IV, p. 139 et seq.
8. The question arises above all, and increasingly often now, in the framework of a
group of States achieving a measure of alignment, and even unification, as is the case of the
European Communities.
9. See the very pertinent ideas developed in connection with the reciprocity clause by
Vincenzo Starace: La juridiction obligatoire de la Cour europeenne des droits de lhomme
in Les clauses facultatives de la Convention europkenne des droits de lhomme, p. 225 et seq.
10. See also A.C. Kiss, La Convention europeenne des droits de lhomme et le systeme
de garantie du droit international public in La protection intemationale des droits de
lhomme dans le cadre europben, Paris, 1961, p. 239 et seq.
11. See K. Vasak, La Commission interam6ricaine des droits de lhomme, Paris, Pedone,
1968, Chapter VII. See also supra, Chapter 17.
12. See K. Vasak, op. cit., Chapter VI. See also supra, Chapter 17.
Annex I
Chart of Ratification
Note: The Chart of Ratification is contained in the back pocket of the book.
~nnex I 10 Thc intwmrimwl Dimemions of Human Righrs. Grcenwd Pressf Unesco. 1982 CHART OF RATIFICATIONS OF MAJOR TAT DES RATIFICATIONS DES PRINCIPAUX INSTRUMEN
INTERNATIONAL HUMAN RICHTS INSTRUMENTS INTERNATIONAUX RELATIFS AUX DROITS DE LHOMME
as of 1 January 1983 au 1 janvier 1983
,,---jO%pnirptiintannbna*CutTPVpil:
;,,-:i
Inhmatjonal Lalxworga~lion: 19.22.~.3l,4243.44.45.466.47.
s CumcildEumpc: 5.6,7.8.9.10,11.12.13.14.25.
organimlial OrArlimn Unity: 16.41. -/A==I-=
= Gmadl&lEumpe: OlgMhtiOll&lunil6dricply:
GENERAL INSTRUMENTS / INSTRUMENTS GENERAUX 1 SPECIFIC ISSUES / QUESTIONS SPECIFIQUES 88 PROTECTION OF PARTICUWR CROUPS / PROTECITON CATEGORIELLE
n I a-i- ^IAAi y+& pjg-g&/~ .efc - -/
efc j$j Alia8. etc./tm>kr. N Il WaaJFmna caba<nr.cre TATS
AlbiVli?3 I
Algnia 0 0
AIlgAI 1
Antigua ad Barhuda 0 I
.-.-.-.-n-l I I II I I, - ,I - I, - I II I I I II
AIJgClltiM 1 1 1 ] 11 1 1 1 1 1 I I I I I I 1-1 I~l~l-l-ll-l I II I I-l-l*l.ll I I l n
. ___.-II_ l l I I 1 I I I I I 111 lalmlalmllal I IlmI 1-1 Imlll 1 I 1 il
ksh
Benin I 1 I I II I I 1 l I I I I 1 l I I I rlrlol
Bdivia 1.1.1 1.11 I I ! ! ! ! ! ! ! !a! !i! j.1 ! : -:: ; ; ;; ; ; ; ;;
Bl.Ull 1 1 1 1 11 1 1 1 1 1 I I I I I I I I I I I I II I I II 1 I I I 1 II I t I II r-1 1 1 Il 1
Elulgaria lO1.I l Il l I l I I I I I I I I IZ!o!i!q !?!L!O! !! ll.l.l.llllllll 1. I II I I I II
I
I
1
I
lI I
I
I
I
IlrI*
II,
numla l l I I II ! ! ! ! ! ! j ! ! ! ! ! - .l - ! ! ! ! !!-! ! !!W! ! ! !
BuNndi ] 1 1 1 11 1 1 l 1 l l 1 I 1 1 I 1.1.1 I I 1 II I I II I I I l.i.II I I I II 1.1.1 l 1.11
Bydomsiin SR ~mlalalml lmllml~l II ll~lm1m1 II I I I II I I I I I II(
canada l:,:,.l.ll I 1 I I I I I I I 1 I 1
I I II I 1 I I I I I I l 1 I I
1- TI I:II I I I I I I I I I $1 !0 0 -, , ,~,,~, ,
Egypl ~0~0~ 1 II 1 1 I 1 I I I I 1 l I I 0 0 l lil.l.ll.l I
El Salvador 1.101 I II I I I I I I I I I 1.1 1. . I
Equatmial
Guh
Haiti I I I I II I l I I I I I I I 1-1 I
Hdy !Sec 1.1 1 1 1 1 II 1 I Il I I I I
I I I I II i I - I.l- I I II il OI I I I I II 6161-i l r- 1 IMhi
1.1 I I II 1.1 I I I I 11.1.1.1.1 I IMU
Maldns I I Il I
Mali 0 a 10 0 0 0 011 0 0 0 0 0 OID
Malta 10 0 0 0 a 0 I 0 0 0 OIl l 0
MCHUiti 1 m II
Mauritius 0 0 OI I 0 I I I I II
Mexico 0 l OI 0 01.1-1 I0U.l I Ila
il1 1 IPapooaaie-Nau\rcllaGuina
II I I I II
I I I I II , , , , , , , , , , , I , , , , , II , , I, , , , , ,,Jll l I I II
SaintVinantandtheGmt=di=nadines
1.1 I Il l l l l I 1 I 1 l 1 l 1.1.1 l l ! ll ! !! ! !!
SanMalim I 0 l
!saoTunealmi~
saodiArabia . ...:.. 0 a :. 0.:.:: I
0 0 a.0
I I I I I I
,
1 0
I I J
i riiii-ii-i I /, iiII i, i, /, i
zmbaburc 0 -11 1 , 1 ,, I I I I II , , II , , , , , II , , ,
Totaimtmberof 74 72 14 27 21 17 19 18 21 21 13 21 14 13 17 6 II7 69 102 72 25 102 87 22 -1 45 47 94 51 125 107 14 15 12 11 11 87 86 32 10 26 102 94 Il0 69 38 22 87 54 31 31 15 21 18 152 152 152 152 27 I 23 I Nsmbmtotd
Stmespwties duktatqwties
LKXE DES INSTRUMENTS ET LEURS R&F&RENCES OFFlClELl.E3
(les numtms -Pondent aux colonnes indiiuter dans lEta des ratifications)
1. Pacte interttatimd relatif otu droits hmomiqws. s0ciau.x et cul~wels (1966). RQ. AG 2200 A (XXI), Dac. UN Af6316. Entr6 en vigueur le 3 janvier 1976.
2. Pacte interm~imal relatif aux droits ci& et pditiques (1966). R6s. AG 2200 A (XXI). Dot. UN A/6316. Entrt en vigueur le 23 mars 1976.
3. l&lamrion relatiw d larticle 41 du Pacte intematkmal relatif aux droits civils et po/itiqws (comp6tcnce du Comitt des droits de lhomme & ttre saisi des communications
dun Etat nie contre un autre ltal partie). Entr6c en vigueur le 28 mars 1979.
4. Profde oadtmf se ropportont ou Pacte inrematimml nltiif aux dtits civils et pdiriques (1966). Rk. AG 2200 A (XXI), Dot. UN A/6316. Entrt en vigueur le
23 mars ll6.
5. Conwnricm -enne des drats de Ihmtme (1950). intituk &kiellement Cmvmrion de sauwgarde des droits de lhomme et des libert& fmdomen;ales. Conseil de
lEurope, S&e des traMs crroplcnr. no 5. Entr& en vigueur le 3 septembre 1953.
6. Dtelamtion r&iw d larticle 25 de 10 Convention a?&ettne des drdts de lhomme (Droit de recours individuel) (1950). Conseil de IEumpe, S&e des traits europicnr.
ne 5 (i). Rntr6e en vigueur le 5 juilkt 1955.
7. l&hrOri~n tdotlw lortick 46 de h Ccmwntim ettr&etUte des drdts de Ihommc (Jurtdictlm de la Cour) (1950). Conseil de IEumpe. S&ie des tmfts eumpkrs.
no5 (ii). Entr& en vigueur le 3 septembre 1958.
8. R&acde a&iitiuwi d la Cmventim l ttrqdenne des dtits de IXomme (1952). Conseil de lEurope. S&i des traitks europens. no 9. Entr6 en Vigueur le 18 mai 1954.
9. Protocole IP 2 13 la Cmventim europcrMc des droits de Ihtmtme. ottrtbumt b la Cour cumphnnc des drts de l%mtme la comp&ence de donner des ovis comultotifs
(1963). Conseil de lEurope, S&e des troitCs nvopirnr. n 44. EntrC en vigueur le 21 septembre 1970.
10. prorocdr n3 0 In Gwwntim ewopfefme des dtits de lhmtme. modi&tt les articles 29. 30 et 34 de /<r ronwntion (1963). Conseil de IEumpc, S&e des traits l uropicnr.
no 45. Entr6 en vigueur le 21 septembre 1970.
Il. Prcnocole >P4 d la Cmwntion eur&enne des drah de Il-, recmnai~smt certabu droirs et libwts autres 9ue ceux figurant djd dam la convention et dam le premier
protocde odditiwul d la conwnrion (1963). Conseil de lEurope, S&i= des traits cumpicn<. no 46. EntrC en vigueur le 2 mai 1968.
12. Protocole ti 5 d la Commtion europ#enne dei droits de lhomme. modifiant les articles 22 et 40 de 10 convention (1966). Conseil de IEuropc. Srie des traits europen.
n 55. EntrC en vigueur le 20 d&embre 197 1.
13. Accord europen concerttant les persmncs participant aux procdures devant la Commi>sim et la Cour europ&ennes des droirs de lhomme (1969). Conseil de lEurope, Srie
dos trdts ewop(cnr. n067. Entr6 en vigueur i 47 avril 1971.
14. Charte sociale ew~ennc (1961). Conseil de lEurope. S&e des ttitls em, no 35. EntrCe en vigueur le 26 f6vricr 1965.
15. Convention nmricainc rel<rtiw aux droits de lhomme (1969). thanisatnon f=T es bats ambicains. Srie des trait& no 36. p. 1 (OAS Ofhcial Records, OEA/SER/A/I6).
Ent&e en vigueur le 18 juillet 1978.
16. Charte africaine des drais de lhomme et des peuples (1.981). Organisation de lunit6 africaine. (Pas encore entre en vigueur au le janvier 1983.)
17. Conwntim intemationde sur IYliminatim de toutes les fntes de disenminorim rucide (1965). Nations Unies. Recueil des traits, vol. 660, D. 195. Entr&e en vigueur le
4 ;anvier 1969.
18. Conwnrion internatimdc sur Ilimination et la rC ssim du crime dapvtheid (1973). Rb. AG 3068, Dot. UN AJ9030. Ent&e en Vigueur le 18 juillet 1976.
19. Conwntirm de IOIT (W 100) conwcrmt IgditC 8.e rcmuniration entre la main-dauvre masculine et la main-doeuvre fCminine pour un travail de valeur gale (1951).
Nations Unies, Recueil des traits. vol. 165, p. 303. Entrte en vigueur le 23 mai 1953.
20. Cwentim de IVnesco concernant la lutte cmtre la discriminutim dam le domaine de Irmeignement (1960). Nations Unies. Recueil des traits. vol. 429, p. 93. Entr&e en
vigueur le 22 mai 1962.
21. Protocole itutitumt une Commission de conciliation et de bons o ces chor&e de rechercher la
mncermmt 10 lutte contre la discrimination dam le domaine de taen<crgnement (1962). Nations
1968.
22. Comwntion de IOIT (ti III) cmcwnmt la discrimirmtim en mati&e demploi et de profession (1958). Nations Unies. Recueil des trairs. vol. 362, p. 3 I. Entrtc en vigueur
le 15 juin 1960.
(a) c&oclde, crimes de t7scrrc, Ixbes cam I%mmaBith

23. Cmwntim pour la prwntion et la rpressim du crtme Nations Unies. Recueil des troittk vol. 78, f 277 : Ent& en vigueur le 12 janvier 1951.
24. Conwnricu sur Imprescri~tibilit des crimes de guerre et lhwnmit~ (1968). Nations Unies. Recueil es trarts, vol. 754. p. 73. Entrte en vigueur le
I I novembre 1970.
25. Cmwttion europicnnr sur Iimprescriptibilit des crimes contre Ihumonit et des crimes de guerre (1974). Conseil de IEuqe. Srie des traits europens, n 82. (Pas
ertcorc cntr& en vigueur au 1 janvier 1983).
26. Protocole amendant la Convention relative d lesclavage sigm!e b Gem% le 25 septembre 1926 (1953). Nations Unies. Recueil des traits, vol. 182, p. SI. Entr en vigueur
le 7 d&embre 1953.
27. Convktion relative 6 lsclavage. si fe. e b Genew . le 2S - septembre
- 1926. et ammd~e par le protorde en date du 7 diccmbre 1953 (1953). Nations Unies. Recueil des traits.
vol. 212. ,,. 17. Entr&e en vigueur e 7 JUlkt 1955.
28. Convention supplimcntdre relative 0 ldmiition de Isclavage. de la traite des esclaves et des inrtitutiom et pratiques andogues d Icsclavage (1956). Nations Unies. Recueil
des trait&. vol. 266. p. 3. Entr& en vigueur le 30 avril 1957.
10 r+wession de la traite des ftres humains et de lexploitorion de /a prmtitution dutrui (1949). Nations Unies, Recueil des traits, vol. 96. p. 27 I, Entre
30. Conwntim de /OIT (d 291 cmcemmt /c truwil fwd (1930). SociCtC des Nations. Reateil des traits. vol. 39, p. 55. Ent&e en vigueur le 1 mai 1932.
31. Comwttim de IOIT [n 1051 concernant labolition du travail f& (1957). Nations Unies, Recueil des traits. vol. 320. p. 291. Entr&e en vigueur le 17 janvier 1959.
32. Convention de IO.54 sur Ihrile (1928). Interwtionol Cmferewes ofAmericOn Stotes. 1889-1928, p. 434. Entr& en vigueur le 21 mai 1929.
33. Cmwntim de IOE4 sur Iasile Entr&e en vigueur le 28 mari 1935.
34. Convention de I0E-l sur lasile 334. Entr& en vigueur le 29 dtccmbre
1954.
35. Convention de IOE4 sur IPrik territcsid (1954). Internatimd Conferences ofAmerican Stotes. 2nd Supplement. 1942-1954. p. 345. Ent&e en vigueur le 29 d&embre
1954.
(d) Ubert& de lif-tka

36. Cmwmtion relatiw OY droit international de rectijkatim (1952). Nations Unies. Recueil des trait& vol. 439. p. 191. Entrb en vigueur le 24 aot 1962.
37. Cmvention relative <IU statut des &fugis (1951). Nations Unies. Recueil des trdth, vol. 189. 137 Entr&e en vigueur le 22 avril 1954.
38. Pmtocde relatif au st<llut des &fugiJs (1966). Nations Unies, Recueil des tmit~s, vol. 606. p. !t 67. Entrt en vigueur le 4 octobre 1967.
39. Cmwttim re/otiw.m statut des apatrides (1954). Nations Unies. Recueil des trait& vol. 360. p. 117. EntrCe en vigueur k 6 juin 1960.
40. Cmwntim sur la riduerion des cas dpattidie (1961). Dec. UN AJGmf. 9115 (1961). Entr&e en vigueur le 13 dcembre 1975.
4 1. Ccuventim de IOLU ~@ssant les aspects prqwes <I~X problmes des t$fugids en Aftiquc (1969). Dot. UN MHCR/ 13 I ( 1969). Ent&e en VigUeUr le 20 juin 1974.
(b) TmrmiUems
42. Cmtwttim de IOIT (7 I IJ concernant les droits dssociatim et de coditim des travailleurs ogricdes (1921). Nations Unies. Recueil des fruits. vol. 38. p. 153-l 59
(no 594). Ent&e en vigueur le II mai 1923.
43. Convention de IOIT (@87) concernant la libert& syndicde et la protection du droit syndical (1948). Nations Unies. Recueil des traits. vol. 68. p. 17. Entr&e en vigueur le
4 avril 1950.
44. Cmwntion de IOIT (n 981 cmcernmt lapplication des principes du droit dwgmis&m et de n#gociation cdlectiw (1949). Nations Unks. Recueil des traits. vol. 96.
p. 257. Ent&e en vigueur le 8 juillet 1951.
45. Conwnrion de IOIT (n 122) cmcermnt la politique de lemploi (1964). Nations Unks, Recueil des traits, vol. 96. p. 257. En<& en vigueur le IS juillet 1966.
46. Cmwntim de IOIT (n 135) concwmmt 10 protection des reprkentmts des travailleurs dam lentreprise et les forilit& leur occder ( 197 I ). OIT, Bulletin @ciel, vol. LIV
(1971). no 3. Entr&e en vigueur le 30 juin 1973.
47. Cmwntion de IOIT (n 141) cmcwnmt les wgmisatiw des travailleurs rt+tu et leur rc5le dam le d&eloppcment conomique et socid (1975). OIT. Bulletin oficiel.
vol. LVIII (1975). Ser A. n I. Entrtc en vigueur le 24 novembre 1977.
W F-
48. Cmventim sw les droits politiques de la femme (1952). Nations Unies, Recueil des rrtit& vol. 193. p. 135. Entr&e en vigueur le 7 juillet 1954.
49. Cmvmtim sur 10 mtimdiri de la femme moncC (1957). Nations Unies. Recueil des trait& vol. 309. p. 65. Entr& en vigueur le II ao6t 1958.
50. Convention sur le cwntemem ou mwiagr. IZp minimum du mariage et lhrqi>tmment des mariages (1962). Nations Unks, Recueil des traits. vol. 521, p. 231. Entre
en vigueur le 9 dkembre 1964.
5 1. Cmventim sur Ilimination de toutes les /rnes de discrimination 0 l&rd des femmes (1979). R&. AG 34/I80. Ent&e en vigueur le 3 septembre 198 1.
52. Cmwntion de IOM sur la natimdit de la femme (1933). htternotimd Cmferences ofAmericm States. 1st Supplemmt. 1933-1940. p. 106. Entr&e en vigueur le 29 ao61
. ,__.
IQU
53. Conwntim intermn&icainc sur /a concession des droits politiques b la femme (1948). International Cmferences ofAmerican Stores. 2nd Supplement 1942-1954. p. 229.
Entre en vigueur le 17 mars 1949.
54. Cmwntim interamkricaine sur la concession des droits civils 0 la femme (1948). InternarimaI Cmferemes ofAmerican Stores. 2nd Supplement. 1942-1954. p. 230. Entre
en vigueur le 17 mars 1949.
(d) Codmuts, prkotmkn et prmoms ririks

55. Cmwntim de Genk pmu Iomiliaation du sart des blesss et des malades dam les fwces armes en cmnpogne (1949). Nations Unies, Recueil des traitir. vol. 75. p. 3 I
Entr& en vi ueur le 21 octobre 1950.
56. Convention d e Gen&e pour Iamilioration du sort des blesss, des mdadw et des naufrogis des fres arm(rr sur mer (1949). Nations Unies, Recueil des traits, vol. 75.
p, 85. Em& en vi8ueur le 21 octobre 1950.
57. Comwttion de Cett&e reltttiw LIU traitement des prismmiers de guerre (1949). Nations Unies. Recueil des trait& vol. 75, p. 135. Entr&e en vigueur 1~ 21 octobre 1950.
58. Convention de Gen&e relotiw lo protection des persmws civiles en temps de guerre (1949). Nations Unies. Recueil des fruit& vol. 75. p. 287. Ent+e en vigueur le
21 octobre 1950.
59. Protocde additiwwi <IYX Cmwntionr de Genve du 12 omit 1949 nIatif 0 10 prmectim des vicrimes des coq7its armis internationaux (Protocole 1) (1977). Entr en
vigueur le 7 d6cembrc 1978.
60. Protccde odditimel wx Conventions de Gen?ve du 12 amIt 1949 relatif 10 prmectim des victimes des conflits arms non internationaux (Protocole Il) (1977). Entr en
vigueur k 7 d&embrc 1978.
----.- ~ - __I.-..I_.__ i ..__-._ - ,-.-_ --__~.---_._----~-..-

------l_l -F-_-111.<4.. --.- .-.I
LIST OF IN!TtRUMENlS AND THEIR OFFlClAL CITATIONS
(the numbcn correspond ta the columnr on the Chan)
1. International Cowwm C+IEcwomic. Social and Culrural Righu (1966)GA Res. 2200 A(XXl), 21 UN GAOR, Supp. 16 et 49. UN Dot. AJ6316. Entcmd into forc on
3 January 1976.
2. International Cowwa on Civil and Political Righrs (1966) GA Ru. 2200 A(XX1). 21 UN GAOR, Supp. 16. at 49. UN Dot. A/6316. Entcred into force on 23 Mnrch
1976.
3. Lkclara:i~ ngardingArti& 41 of rhe Imemaric+ml Co+wnanlan Civil and Political Righrs (cooceming the competencc of thc Human Rights Committee to rcceive
communicntiotts by ooe State Party against another). Entcred into force on 28 Mat-ch 1979.
4. QMimai Pmtocol 10 rhe Infemational Cownant on Civil ami Pdirical Righrs (1966) GA Res. 2200 A(XXI), 21 UN GAOR. Supp. 16, at 49, UN Dot. AJ6316. Entenxl
into fora on 23 March 1976.
5. European Convention on Human Rights (1950)-fomtnlly entitled Canwntion for fhe Pr@ection of Human Righrs and Fuadamen~al Freedonu. Council of Europe, &uropean
Tn<rty Scrim. No. 5. Entercd into force on 3 Septemtcr 1953.
6. Lkclaratian ngardinglnicle 25 o rhe Ccwwmtiwt J the F?atectiwt of ifuman Rights ami Fondamental Freedoms (Righr of Iadividual Petirim) (1950). Council of Europe,
Eumpzan Treaty Series. No. 5 (I.f Entcred into force on 5 July 1955.
7. Lkclaratian regarding Article 46 of the Canventian for fhe Prat~tian of Human Righrs ami Fundamen#al Freedoms (Juri~diclion of the Court) (1950). Council of Europe,
European Trcacy Series. No. 5 (il). Entered into force on 3 September 1958.
8. Praocd of the Comwnfionfor the Praecrion of Human Righu and Fundamental Fmedams (1952). Couocil of Europe. Europron Treary Series. No. 9. Entered iota foa
on 18 May 1954.
9. Rotacd NO. 2 10 rhe Co?wentioaJ the Proteclion of Human Ri hts and Fwbdamental Freedoms. confemng upon rhe European Carri of Human Rights Competenceto Giw
Advisory Opinimu (1963). Council of Europe. European Treaty SS. ms. No 44 Entcrcd into force on 21 Scptcmber 1970.
10. Raord NO. 3 10 the Camention Jw the Protection of Humaa Rights ami Fundamentol Freedoms. amending Articles 29. 30 and 34 of rhe Conwmion (1963). Council of
Europe, Eurwan Treaty Series. No. 45. Entcred into fora on 21 Septcmber 1970.
11. Praocd NO. 4 to the ConventionJo? the Protection of Human Rights ami Fundamenlol Freedoms. Secwing Certain Righrs and Freedm Other rhan Tharr Already Included
in the Convention ami in thc First piotord Thereto (1963). Council of Europe. Eurqwan Trealy Series, No. 46. Entered into force on 2 May 1968.
12. Protord Na 5 10 the Coawnrion J Ihe Frdecfim of Human Righrs ami Fumiamental Freedotm. Amending Articles 22 ami 40 o/ rhe Convention ( 1966). Council of
Europe. Eu-an Treaty Series. No. 55. Entered into force on 20 Decembcr 1971.
13. Eu-an Ag~eemen~ nlafing to Persans Participaring in Pmceedings of rhe Eurqxan Commissi~ and Court of Human Rights (1969). Council of Europe. European Treaty
Series. No. 67. Entered into force on 17 A ri1 1971.
14. European Social Ch<urer (1961). Council o P Europe. European Trealy Series. No. 35. Entend into force on 26 Februa
15. American Cxtvention on Human Rights (1969). Orgnnization of American States. Treary Serics. No. 36, p. I (OAS 2F5. ctal Records, OEA/SER.A/Io. English).
Entrered into force on 18 July 1978.
16. Afrn Charter on Human and Peoples Rights (1981). Grganization of African Unity. (Nol yet in fora as of 1 January 1983).
l I- 62iledq pvatkm of dbcrim&tim
17. ~nII$aliona~ Comwaion on the Elimination ofAll Forms of Racial KXscrimination (1965). United Nations. Treaty Series. Vol. 660. p. 195. Entend iota force oo 4 Jaomry
18. International Convefaion 01 rhe Suppressitm and Punishment of rhe Crime ofApartheid (1973). GA Res. 3068, 28 UN GAGR. Supp. 30, at 166, UN Dot A/%30.
Entered into force on 18 July 1976.
19. IL0 Convention (Na 100) concerning Equal Remunem~ionfor Men ami Women Workers J Wwk. of Equal Value (1951). United Nations, Treary Series. Vol. 165. p.303.
Enter& into Gorce on 23 May 1953.
20. Unesco Canwuian against Diserintinafi~ in Educarimt (1960). United Nations. Treary Serie.7,Vol. 429, p. 93. Entcred into force oo 22 May 1962.
2 1. Unrsco Rotacol inrrituting a Conciliation and Good ces Commissiott 10 be Respomible for Seeking rhe Setrlenwa of any Dispa~cs Which May Arise Beween Stases
Parties 10 tke CtwtrionAgaintr Discriminarion in EY.ucatwm (1962). United Nations. Treaty Series. Vol. 651. p. 363. Entered into force on 24 Gctober 1968.
22. IL0 Comwaion (Na I Il) wreming Discrimination in Respect of Employmenr and (kcuparion (1958). Uniled Nations. Treaty Series. Vol. 362. p. 3 1. Entered into force
on 15 June 1960.
23. Camcnrian on <Le Prevenrion aad Punishmenr ofrhe Crime of Ccnociode (1948). United Natioos. Treary Series. Vol. 78. p. 277. Eotered in to force on 12 January 1951.
24. Convenrim on the Non-applicability oJStatucory Limitations to War Crimes ond Crimes againsr Humanity. United Nations, Tmuy Sen>s. Vol. 754. p. 73. Entercd iota
force on 1 I Novcmber 1970.
25. European Comwaion M rbe Non-applicability of S~arury timitarians ta Crimes agaimt Humatdty and War Crimes (1974). Cuneil of Europe. Europan Treaty Series.
No. 82. (Net yct in force BJ of 1 January 1983).
(b) Slavey, tmf& im petsam, forced hbow

26. fiotmd anunding Ihe Slov~ry Canwnti~ Signed OI Ccnvo on 25 Sepzember 1926 (1953). United Nations. Treafy Setie$ Vol. 182. p,; 51. Ea*ttd iota fora on
7 -_-...-_. .___.
ne.-mnher toca
27. Slmrry Convention Si&ed <II Geneva on 25 Septembcr 1926 and Amnded by the Prorocd Done of the Headquarters of rhe United Nali@% Nete y&. oa 7 &wn&r 1953
(1953). United Nations, Treaty Series. Vol. 212. p. 17. Entcred into force on 7 July 1955.
28. Supplemenl~ Convention an rhe Abolilian of Slawry. the Slave Trade. and Iiutituriarr ond Practices Similar to Slavery (1956). Unitai Nation%. Trea:y Set+$ Vol. 266.
p. 3. Enteted into force on 30 April 1957.
29. Caawntion Jw rhe Suppressim of rhe Trafic in Persom and of rhe Expldtation of rhe Prwiturion of Olhers ( 1949). United Nations, Treaty Seties. Vol. 96, p. 27 1.
Enterez! into fora on 25 July 1951.
30. IL0 Comnrim (No. 29) conceming Fwced Lobow (1930). Lca uc of Nations. Treaty Series. Vol. 39, p. 55. Entered into force on l May 1932.
3 1. IL0 Cmwention (No. 105) cmrrning rhe Abolilion of Fwcrd La %a? (1957). Uniled Nations, Treary Series. Vol. 320. p. 291. Enter& into fora oo 17 January 1959.
32. OcF Convention onAsylum (1928). Inremarional ConferernrcsoJAmerican Stores. 1889-1928. p. 434. Entered into fora oo 21 May 1929.
33. 04s Conwntiatt M PditicalAsylum (1933). InlemationaI Con l rences oJAmerkan Sta~rs. 1st Su plemenr. 1933-1940. p. I 16. Entered into fom on 28 March 1935.
34. OCS Convenlion on Diplomatie Asylum ( 1954). Internaticmal cconferencesof American Stares. 2J Supplement. 1942-1954. p. 334. Entered into fora on 29 Deccmbcr 1954.
35. 04s Cmwntion on Territorial Arylum (1954). ImemaIional Corfwences oJAmerican States. 2nd Supplemen~.1942-1954. p. 345. Emcred into force on 29 Dcccmber 1954.
(d) Fredom of i&nmtom

36. Conwnrion on the Inlematiatol Righr oJCwrection (1952). United Nations. Treaty Series. Vol. 439. p 191. Entered into fora on 24 August 1962.
37. Comwntion relating ta the Statut of Refugres (1951). Uniled Natioos. Treaty Series. Vol. 189. p. 137. Entend inlo force on 22 April 1954.
38. Protord nlating rothe Statu~ of Refugees (1966). United Notions. Treaty Sen>s. Vol. 606. p. 267. Entered into force oo 4 Gctober 1967.
39. Comwation relating to rhe Starw of Sfa~elessPersom (1954). United Nattons, Treaty Series. Vol. 360. p. 117. Entercd into force on 6 June 1960.
40. Ctnvenrion M the Reducfion oJStatelessness (1961). UN Dec. A/CONF.9/15 (1961). Entered into fora on 13 December 1975.
41. 04iJ Canwttim gawming rhe SpecijcAspects of Refugee Pmblewu inAJtica (1969). UN Dot. MHCR/l31 (1969). Entered into fora on 20 Juoe 1974.
42. IW Conwntion (Na I IJ careming the Righrs of Association oad Combinaticm of Agricul~urd Wwkers (192 1). United nations, Treaty Series. Vol. 38. p. I53- 159 (No.
594). Entered into force on Il May 1923.
43. IL0 Convention (Na 87) cmcqning Freedom ofA&xiatic+# ami Protection of rhe Righr 10 Oiganize (1948). United Nations, Treaty Sen>s. Vol. 68, p. 17. En~ered into
&~y on 4 Aoril 1950.
44. IW Ccnweni&(~~ 98) connming rhe Application of the Rinciples of the Righr 10 ckg<rnirr and llargain Cdlectiwly (1949). United Nations. Treaty Sen>s. Vol. %.
p. 257. Entered into force on 18 July 1951.
45. IL0 Camwion (Na 122) conceming Employmem PoCry (1964). United Nations. Treary Series. Vol. 569. p. 65. Entercd into force oo 15 July 1966.
46. IW Conwntion (Na 135) cowerning Protection and Faciliries ta br oflwded ta Wwkers Rcpresentarives in :he Undertaking ( 197I ). ILO. O#cial Bulletin. Vol. LIV ( 197 1).
No. 3, Entcred into force on 30 Junc 1973.
47. IL0 Conwaion (Na l4/J caweming &ganizarionr of Rural Wwkers and rheir Rde in Eccuomic ami Social Dmlopmcnt (1975). ILO, O&ial Bulletin. Vol. LVIII (1975)
Ser. A, No. 1. Entcrcd iota force on 24 November 1977.
48. Comwnlion on rhe Pdirical Righrs a/ Women (1952). United Nations:Treary Serics. Vol. 193, p. 135. Entend iota force on 7 July 1954.
49. Comwaion on the NLjfioaalify of Married Womea (1957). Uni& Nations. Treaty Series. Vol. 309. p. 65. Entered into force on I I August 1958.
50. Comwaion an Canrenf 10 Marriage. Minimum Age for Mar?iage ami @i.twatian of Marriages (1962). United Nations, Treary Series. Vol. 521. p, 231. Entered into force
on 9 Decembcr 1964.
5I Canwnrion on rhe Elimimtion ofAll Forms of Discrimitmtion againrt Womea (I979), GA Res. 34/ISO. Entered inlo force on 3 September 198 1.
52. 04s Convention M the Narianality of Womcn (1933). inrematiaual Confere~~esoJAmerican Stores. 1st Supplemeti. 1933-1940. p. 106. Entend iota force oo 29 August
1914
53. InIrr-Anwican Canventian an rhe Granting of Politicd Righrs to Womn (1948). International Coaferekes of Amerkorr States. 2mi Supplement. 1942-1954. p. 229. Entcrcd
into force on 17 Match 1949.
54. Iater-Anwrican Comwaian an rhe Granting of Civil Righrs 10 Women (1948). Intemario+wl ConferencecoJAmericain S~ot~s.2nd Supplement, 1942-1954. p. 230.
(d) Combatma, priunen md cirhm

55. Ceneva Cwenfionfor the Ameliwation of rhe Condition of the Wmmded ami Sick in Armed Fore~s in the Field (1949). United Nations, Treaty Series. Vol. 75. p. 31.
Entcred into fora on 21 Gctober 1950.
56. Geneva ConventionJ rhe Amcliwalion of the Condition of Waunded, Sic& and Shipwrecked Membrrr oJArmed Fore~s OI Sea (1949). United Nations, Treafiy Series. Vol!
75. p. 85. Entend inlo force on 21 Gclober 1950.
57. Geaeva Coawntion relatiw ro the Treatmeta ofpiismrs of War (1949). United Nations, Tre&y Suies. Vol. 75, p. 135. Entsred into force on 21 Cktober 1950.
58. Cenew Conventioa relative ro rhe Prowcrion of Civilian Persom in Time o/ War (1949). United Nations. Trealy Serics. Vol. 75. p. 287. Enlcred into force on 21 Gctobcr
1950
59. Prorocd AdditionaI ta rhe Geneva Convenriom of 12 Augtut 1949 and nlaring 10 rhe Protection of Victinu of Inrer&uic+ml Armed Cwtflicfs /Protocol IJ ( 1977). Entered into
force on 7 Dccembcr 1978.
60. Promcol Addirimal 10 the Gem0 Conventions of 12 August 1949 ami nlaring to rhr Protectim of Viclinu of Non-lnternafioMI Armed COnpcfs (Protocol II) ( I 977)
Entered into foi= on 7 Decembrer 1978.
Annex II
Figures
FIGURE 1. COMPARATIVE SCHEMA OF THE IMPLEMENTATION MACHINERY OF THE EUROPEAN CONVENTION
AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
American Convention
European Convention
>
Secretariat-General Inter-American /
of the Council Commission on /
of Europe Human Rights /
EUrOpea I
1 Inter-American
Commission Commission on z
of Human Human Rights
Rights
I
Inter-American
European Court Ministers of the Commission on
of Human Rights
r Judgment
Article 38 et *ecL
- - - - -
Compulson, jurisdiction
Optional jurisdiction
FIGURE 2. SCHEMA OF THE IMPLEMENTATION MACHINERY OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Human Rights
Committee
observations
/I
Human Rights
Committee
(Article 41, Receivability (Articles 2. 3, 5

Receivability
pare. ICI Optional Protocol)
Good offices Establishment

Establishment
(Article 41,
of facts Optional Protocol)
pare. 1 e. f, g)
Formulation of views
Article 41, para. 1 h Article 5, para. 4
Optional Protocol
Article 42 1
optional (
4
Commission:
685
FIGURE 3. COMPARATIVE SCHEMA OF THE IMPLEMENTATION MACHINERY
OF THE EUROPEAN SOCIAL CHARTER AND THE INTERNATIONAL
COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Reports from
the States Parties
Articles 16, 17
Conclusions Article 19: Optional

(Articles 24-26)
+
1
Y United Nations
Sub-Committee of ECOSOC Commission on
Governmental Human Rights
Social Committee
t
Study and recommendations
of a general kind
Report (Article 27)
Consultative Assembly Article 21: Optional

of the Report and recommendations
Council of Europe of a general kind
Views (Article 26)

and CM. of 12.11.71
t I
Committee of Ministers
I Recommendations
Contracting Parties of the United Nations

I
686
Annex III
Selected Bibliography on International

Human Rights Law
I. DOCUMENTARYSOURCES 688
A. COMPILATIONS OF DOCUMENTS 688
B. DOCUMENTS AND PUBLICATIONS OF INTERNATIONAL
AND REGIONAL ORGANIZATIONS 689
1. UNITED NATIONS 689
2. INTERNATIONAL LABOUR ORGANISATION 693
3. UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND
CULTURAL ORGANIZATION 695
4. WORLD HEALTH ORGANIZATION 697
5. FOOD AND AGRICULTURE ORGANIZATION OF THE
UNITED NATIONS 697
6. COUNCIL OF EUROPE 697
7. ORGANIZATION OF AMERICAN STATES 698
8. NON-GOVERNMENTAL ORGANIZATIONS 699
II. ANALYTICAL WORKS 701

A. GENERAL WORKS AND ARTICLES 701
B. REFERENCES RELATING TO INTERNATIONAL
AND REGIONAL ORGANIZATIONS 722
1. UNITED NATIONS 722
2. INTERNATIONAL LABOUR ORGANISATION 730
3. UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND
CULTURAL ORGANIZATION 731
4. FOOD AND AGRICULTURE ORGANIZATION OF THE
UNITED NATIONS 732
5. COUNCIL OF EUROPE 732
6. ORGANIZATION OF AMERICAN STATES 735
7. NON-GOVERNMENTAL ORGANIZATIONS 737
This bibliography does not include references to works which deal with specific
human rights situations in, or the policies of, particular countries.
Selected Bibliography
I. Documentary Sources
A. Compilations of Documents
BROWNLIE, Ian (Ed.). Basic Documents on Human Rights. London/New York,

Oxford University Press, 1981, 505 p.
CHAFEE, Zechariah. Documents on fundamental human rights, the Anglo-
American tradition. New York, Atheneum, 1963. 2 vol.
Collection of International Instruments concerning Refugees. 2nd ed., Office of
the United Nations High Commissioner for Refugees, Geneva, 1979,335 p.
COUNCIL OF EUROPE. European Convention on Human Rights. Collected
Texts. Strasbourg, Council of Europe, 1975, 914 p.
-. Human Rights in International Law: Basic Texts. Strasbourg, Dot.
H(78)4, 144 p.
Declaraciones de derechos so&ales. Selection de Felipe Remolina. 1. ed. Mexico,
Ediciones de1V. Congreso Interamericano de Derecho de1Trabajo y de la
Seguridad Social, 1974,108 p.
Derechos Humanos, Declaraciones, Pactos y Convenios Znternacionales.
Arzobispado de Santiag+Vicaria de la Solidaridad, Santiago de Chile,
1978, 150 p.
DRAGOSEI, Italo e Francesco. Z diritti delluomo. Naples, Editore Albert0
Marotta, 1969, 657 p.
HERVADA, Javier, and ZUMAQUERO, Jose. Textos Znternacionales de Derechos
Humanos. Ediciones Universidad de Navarra, Pamplona, 1978, 1012 p.
The Znternational Bill of Human Rights. New York, United Nations, 1978(OPI/598),
42 p.
JOYCE, J.A. (ed.). Human Rights: Znternational Documents. Dobbs Ferry,
N.Y., Oceana, 1979, 3 vol., 1707 p.
LAQUEUR, W., and RUBIN, B. (Eds.). The Human Rights Reader. Philadel-
phia, Temple University Press, 1979, 375 p.
ORGANIZATION OF AMERICAN STATES. Inter-American Commission on
Human Rights. Basic documents. Washington, D.C., PAU, 1960, 30 p.
PECES-BARBA, M. Textos basicos sobre derechos humanos. Madrid, 1973.
PERRUCHOUD, Richard. Les resolutions des Conferences internationales de la
Croix-Rouge. Geneva, Institut Henry-Dunant, 1979, 469 p.
ROSENNE, Shabtai. Documents on the International Court of Justice. Leyden,
Sijthoff, 1974, 391 p.
SOHN, Louis, and BUERGENTHAL, Thomas. Basic documents on the interna-
tional protection of human rights. Indianapolis, Ind., Bobbs-Merrill Co.,
1973, 244 p.
TOMAN, Jiri. Index of the Geneva Conventions for the Protection of War Victims
of 12 August 1949. Leyden, Sijthoff, 1973, 194 p.
TORRELL, Maurice, and BAUDOIN, Renee. Les droits de lhomme et les libertes
publiques par les textes. Montreal, Presses de IUniversite du Quebec, 1972,
387 p.
TRUYOL, Antonio. Los derechos humanos. Declaraciones y convenciones
internacionales. Madrid, Edit. Tecnos, 1968, 71, 160 p.
UNITED NATIONS. Human Rights: A compilation of international instru-
Selected Bibliography 689
ments of the United Nations. New York, United Nations, 1978, 106 p.
(Sales No. E.78.XIV.2).
VASAK, Karel. La protection internationale des droits de lhomme dans le cadre
des organisations regionales. Paris, La Documentation francaise, Dec. 1973,
64 p. (Documents detudes. Droit international public, nos. 305 et 306.)
-. La p,rotection internationale des droits de lhomme. Vignt-cinquieme
anniversaire de la Declaration universelle. Paris, la Documentation fran-
Caise, 30 Nov. 1973, 60 p. (Problemes politiques et sociaux, no 203-204).
B. Documents and Publications of International and Regional Organizations
1. United Nations
Assistance to Racist Regimes in Southern Africa: Impact on the Enjoyment of
Human Rights, by A. Khalifa, New York, 1979 (Sales No. E.79.XIV.3).
Bulletin of Human Rights, published quarterly in four languages by the UN
Division of Human Rights, Geneva.
COMMISSION ON HUMAN RIGHTS, Reports on the sessions. Supplements to
the Official Records of the Economic and Social Council. Sessions, years
and UN dot. nos. as follows: 1, 1947, E/259; 2, 1947, E/600; 3, 1948, E/800;
4, 1949, E/1315; 5, 1949, E/1371; 6, 1950, E/1681; 7, 1951, E/1992; 8, 1951,
E/2256; 9, 1952, E/2447; 10, 1954, E/2573; 11, 1955, E/2731; 12, 1956, E/2844;
13, 1957, E/2970/Rev. 1; 14, 1958, E/3088; 15, 1959, E/3229; 16, 1960, E/3335;
17, 1961, E/3456; 18, 1962, Ei3616iRev.l; 19, 1963, E/3743; 20, 1964, E/3873;
21, 1965, E/4024; 22, 1966, E/4184; 23, 1967, E/4322; 24, 1968, E/4475; 25,
1969, E/4621; 26, 1970, E/4816; 27, 1971, E/4949; 28, 1972, E/5113; 29, 1973,
E/5625; 30, 1974, E/5464; 31, 1975, E/5635; 32, 1976, E/5768; 33, 1977,
E/5927; 34, 1978, E/1978/34; 35, 1979, E/1979/36; 36, 1980, E/1980/13; 37,
1981, E/1981/25.
COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION,
Reports, Supplements to the Official Records of the General Assembly.
Sessions, years and UN doe. nos. as follows: 1 and 2, 1970, A/8027; 3 and 4,
1971, A/8418; 5 and 6, 1972, A/8718; 7 and 8, 1973, A/9018; 9 and 10, 1974,
A/9618; 11 and 12, 1975, A/10018; 13 and 14,1976, A/31/18; 15 and 16,1977,
A/32118; 17 and 18, 1978, A/33/18; 19 and 20, 1979, A/34118;21 and 22, 1980,
A/35/18; 23 and 24, 1981, A/36118.
Committee on the Elimination of Racial Discrimination and the Progress made
Towards the Achievement of the Objectives of the Zntemational Conven-
tion on the Elimination of All Forms of Racial Discrimination, New
York, 1979 (Sales No.E.79.XIV.4).
COMMISSION ON THE STATUS OF WOMEN, Reports on the sessions. Sup-
plements to the Official Records of the Economic and Social Council. Ses-
sions, years and UN doe. nos. since 1970 as follows: 23, 1970, E/4831; 24,
1972, E/5109; 25, 1974, E/5451; 26, 1976, E/5909; 27, 1978, E/1978/32/Rev. 1;
28, 1980, E/1980/15.
Definition and Classification of Minorities, New York, 1950(Sales No.1950.XIV.3),
51 p.
Draft International Covenants on Human Rights: Annotation Prepared by the
Secretary-General, Doc.A/2929 (1955).
690 Selected Bibliography
Exploitation of Child Labour, Final Report submitted by Mr. Abdelwahab Bouhdiba,

Special Rapporteur to the Sub-Commission on Prevention of Discrimina-
tion and Protection of Minorities, Dot. E/CN.4/Sub.2/479 (1981).
Exploitation of Labour through Illicit and Clandestine Trafficking, Study by Mrs.
Halima Embarek Warzazi, Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Doe. E/CN.U
Sub.2/L.640 (1975).
Final Act of the International Conference on Human Rights. Teheran, 22 April-
13 May 1968. New York, 1968, (Sales No. E.68.XIV.2), 64 p.
Handbook on Procedures and Criteria for Determining Refugee Status, Office of
the United Nations High Commissioner for Refugees, Geneva, 1979, 93 p.
HUMAN RIGHTS COMMITTEE, Reports, Supplements to the Official Records
of the General Assembly. Sessions, years and UN dot. nos. as follows: 1
and 2, 1977, A/32/44; 3, 4 and 5, 1978, A/33/40; 6 and 7, 1979, A/34/40; 8, 9
and 10, 1980, A/35/40; 11, 12 and 13, 1981, A/36/40.
Human Rights: 50 Questions and Answers on Human Rights and on UN Activi-
ties for the Promotion of Human Rights. New York, 1980 (DPI/646).
Human Rights International Instruments, Signatures, Ratifications, Accessions
etc., issued annually by the United Nations, 1981 edition Dot. no.
STIHRI4IRev.3.
The International Dimensions of the Right to Development as a Human Right in
relation with Other Human Rights based on International Co-operation,
including the Right to Peace, taking into account the Requirements of the
New International Economic Order and the Fundamental Human Needs,
Report of the Secretary-General, Dot. E/CN.4/1334 (1979).
International Provisions Protecting the Human Rights qf Non-Citizens. Study
by Baroness Elles, New York, 1980 (Sales No. E.80.XIV.2), 63 p.
National institutions for the promotion and protection of human rights: Report of
the Secretary-General. Dot. A/36/440 (1981).
Parental Rights and Duties, including Guardianship. Report by the Secretary-
General, New York, 1968 (Sales No. E.68.XIV.3).
Present international conditions and human rights: Report of the Secretary-General,
Dot. A/36/462 (1981).
Protection of minorities: Special protective measures of an international charac-
ter for ethnic, religious or linguistic groups. New York, 1967 (Sales No.
E.67.XIV.3).
Questions and answers on human rights. New York, 1980. (OPIi493).
Racial discrimination (revised, updated version). Study by Hernan Santa Cruz,
New York, 1977 (Sales No. E.76.XIV.2), 284 p.
The realixation of economic, social and cultural rights: problems, policies, prog-
ress, by Manouchehr Ganji, New York, 1975(Sales No. E.75.XIV.2), 326 p.
The regional and national dimensions of the right to development as a human
rights: Study by the Secretary General. Does. E/CN.4/1421 (1980) and
E/CN.4/1488 (1981).
Report of the Working Group on Enforced or Involuntary Disappearances of
Persons. Does. E/CN.4/1435 (1981) and E/CN.4/1492 (1982).
Report of the World Conference of the International Womens Year, Mexico City,
19 June-2 July 1975. New York, 1976 (Sales No. E.76.XIV.l).
Report of the World Conference of the United Nations Decade for Women: Equal-
ity, Development and Peace, Copenhagen, 14 to 30 July 1980. New York,
1980 (Sales No. E.80.XIV.3).
Report of the World Conference to Combat Racism and Racial Discrimination,
Geneva, 14-25 August 1978. New York, 1979 (Sales No. E.79.XIV.2).
Report on slavery, by Mohamed Awad, New York, 1967 (Sales No. E.67.XIV.2).
Reports of the Sessional Working Group of ECOSOC on Implementation of the
International Covenant on Economic, Social and Cultural Rights. Dots.
E/1979/54 (1979); E/1980/60 (1980); E.I981/64 (1981).
Reports prepared by the Secretary-General, since 1976, on Human Rights and
Scientific and Technological Developments. Dots. ElCN.411172 & Adds.,
1194, 1195, 1196, 1198, 1199 & Add., 1233, 1234, 1235 & Add., 1236, 1237,
1276 and 1306.
The Right to Self-Determination: Historical and Current Development on the
Basis of United Nations Instruments, by Aureliu Cristescu, New York,
1981 (Sales No. E.80.XIV.3).
The Right to Self-Determination: Implementation of United Nations Resolutions,
by Hector Gros Espiell, New York, 1980 (Sales No. E.1979.XIV.5).
Round Table of University Professors and Directors of Race Relations Institu-
tions on the Teaching of Problems of Racial Discrimination, Geneva,
1979. New York, 1979 (Doe. No. STIHRISER. A/5).
Seminar on National and Local Institutions for the Promotion and Protection of
Human Rights, Geneva, 18-29 September 1978. New York, 1978 (Dot. No.
ST/HRISER.AIZ).
Seminar on Political, Economic, Cultural and Other Factors Underlying Situa-
tions leading to Racism including a Survey of the Zncrease or Decline of
Racism and Racial Discrimination, Nairobi, 1930 May 1980. New York,
1980 (Doe. STIHRISER.AI7).
Seminar on Recourse Procedures Available to Victims of Racial Discrimination
and Activities to be Undertaken at the Regional Level, Geneva, g-20 July
1979. New York, 1979 (Dot. No. STIHRISER.AI3).
Seminar on the Effects of the Existing Unjust International Economic Order on
the Economies of the Developing Countries and the Obstacle that this
represents for the Implementation of Human Rights and Fundamental
Freedoms, Geneva, 30 June-11 July 1980. New York, 1980 (Doe.
ST/HR/SER.A/8).
Seminar on the Establishment of Regional Commissions on Human Rights with
Special Reference to Africa, Monrovia, Liberia, lo-21 September 1979.
New York, 1979 (Dot. No. STlHRiSER.Al4).
Seminar on the Relations that Exist between Human Rights, Peace and Devel-
opment, New York, S-14.August 1981. New York, 1981 (Dot. STIHRISER.
A/10).
The status oj the unmarried mother: law and practice. Report of the Secretary-
General. New York, 1970 (Sales No. E.71.1V.4).
Study of Discrimination against Persons Born out of Wedlock, by Vieno Voitto
Saario, New York, 1968 (Sales No.68.XIV.3).
Study of discrimination in education, by Charles D. Ammoun, New York, 1957
(Sales No. E.57.XIV.3), 182 p.
Study of discrimination in respect of the right of everyone to leave any country,

including his own, and to return to his own country, by Jose Ingles, New
York, 1963 (Sales No. E.64.XIV.2), 122 p.
Study of discrimination in the matter of political rights, by Hernan Santa Cruz,
New York, 1963 (Sales No. E.63.XIV.2).
Study of Discrimination in the Matter of Religious Rights and Practices, New
York, 1960 (Sales No.60.XIV.2).
Study of equality in the administration of justice, by Mohamed Ahmed Abu
Rennat, New York, 1971 (Sales No. E.71.XIV.3).
Study of the implications for human rights of recent developments concerning
situations known as states of siege or emergency: Progress report by Mrs.
N. Questiaux, Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Dot. E/CN.4/Sub.2/490.
Study on the Independence and Impartiality of the Judiciary, Jurors and Asses-
sors and the Independence of Lawyers, Progress Report by Mr. L.M.
Singhvi, Special Rapporteur of the Sub-Commission on Prevention of Dis-
crimination and Protection of Minorities, Doe. EiCN.4iSub.21481, &Add. 1.
Study of the Individuals Duties to the Community and the Limitations of Human
Rights and Freedoms under Article 29 of the Universal Declaration of
Human Rights, Final Report by Mrs. Erica-Irene A. Daes, Special Rap-
porteur of the Sub-Commission on Prevention of Discrimination and Pro-
tection of Minorities, Doe. E/CN.4/Sub.2/432 (1979).
Study on the New International Economic Order and the Promotion of Human
Rights, Progress Report by Mr. Radl Ferrero, Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of Minor-
ities, Dot. EICN.4lSub.21477 (1981).
Study of the Problem of Discrimination against Indigenous Populations, Final
Report submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo,
Dot. EICN.4lSub.21476 and Adds. l-6 (1981) (Study incomplete).
Study of the Question of the Prevention and Punishment of the Crime of Geno-
cide, Study prepared by Mr. Nicodeme Ruhashyankiko, Special Rappor-
teur of the Sub-Commission on Prevention of Discrimination and Protection
of Minorities, Doe. E/CN.4/Sub.2/416 (1978).
Study of the right of eveyone to befree from arbitrary arrest, detention and exile.
New York, 1964 (Sales No. E.65.XIV.2).
Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic
Minorities, by F. Capotorti, New York, 1979 (Sales No. E.78.XIV.l).
Study on ways and means of insuring the implementation of international instru-
ments such as the International Convention on the Suppression and Pun-
ishment of the Crime of Apartheid, including the establishment of the
international jurisdiction envisaged by the Convention. Doc.E/CN.4/1426
(1981).
SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PRO-
TECTION OF MINORITIES, Reports according to session, year and UN
dot. nos. as follows: 23,1970, E/CN.4/1040; 24,1971, ElCN.411970; 25,1972,
E/CN.4/1101;26,1973, E/CN.4/1128;27,1974, E/CN.4/1160;28,1975, EICN.
411180;29,1976, EiCN.411218; 30,1977, ElCN.4/1261; 31, 1978,ElCN.411296;
32, 1979, ElCN.411350; 33, 1980, ElCN.411413; 34, 1981, ElCN.411512.
The Suppression of Slavery. New York, 1951 (Sales No.1951.XIV.Z), 83 p.

Symposium on the Exploitation of Blacks in South Africa and Namibia and on
Prison Conditions in South African Jails, Masers, Lesotho, 17-22 July,
1.978.Geneva, 1978 (Doe. No. ST/HRISER.AIl).
Symposium on the Role of the Police in the Protection of Human Rights, The
Hague, 14-25 April 1980. New York, 1980 (Doe. ST/HR/SER.A/G).
United Nations Action in the Field of Human Rights. New York, 1974 (Sales
No.E.74.XIV.2) and revised edition, 1980 (Sales No. E.79.XIV.6).
The United Nations and Human Rights. New York, 1978 (Sales No.E.78.1.18),
166 p.
Yearbook on Human Rights. New York, Vol. 1, 1946. Issued annually until 1972
and since then every two years (Sales No. E.XIV.l).
2. International Labour Organisation
Abolition of forced labour: General survey of the reports relating to the Forced
Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour
Convention, 1957 (No. 105). International Labour Conference, 65th Ses-
sion, Geneva, 1979, Report III (Part 4B), 101 p.
Chart of ratifications. Published as of 1 January each year.
Comparative analysis of the international covenants on human rights and inter-
national labour conventions and recommendations, Official Bulletin 1969,
No. 2, pp. 181-216.
Conventions and Recommendations adopted by the International Labour Con-
ference, 1919-66, xvi, 1176 p. Conventions and Recommendations adopted
since 1966 are printed in the IL0 Official Bulletin.
Discrimination in employment and occupation: standards and policy statements
adopted under the auspices of the ILO. Geneva, ILO, 1967, 56 p.
Employment of women with family responsibilities: General survey of the re-
ports relating to the Employment (Women with Family Responsibilities)
Recommendation, 1965 (No. 123). International Labour Conference, 64th
Session, Geneva, 1978, Report III (Part 4B), iv, 68 p.
Equality in respect of employment under legislation and other national stan-
dards. Geneva, ILO, 1967, 135 p.
Equality of opportunities and equal treatment for men and women workers:
Workers with family responsibilities. International Labour Conference,
66th Session, Geneva, 1980, Report VI(l), 69 p.
Equality of opportunity and treatment for women workers. International Labour
Conference, 60th session, Geneva, ILO, 1975, Report VIII, 124 p.
Fighting discrimination in employment and occupation. A workers education
manual. 2nd imprint. Geneva, ILO, 1975.
Freedom by dialogue: Economic development by social progress: The IL0 contri-
bution. Report of the Director-General, Part 1, International Labour Con-
ference, 56th Session, Geneva, 1971, 54 p.
Freedom of association and collective bargaining. General survey on the reports
relating to the Convention on Freedom of Association and Protection of the
Right to Organise, 1948 (No. 87) and the Convention on the Right to
Organise and Collective Bargaining, 1949 (No. 98). International Labour
Conference, 58th session, Geneva, ILO, 1973, Report III (Part 4B), 94 p.
Freedom of association. Digest of decisions of the Freedom of Association Com-

mittee of the governing body of ILO. 2nd rev. ed., Geneva, ILO, 1976,180
P.
General survey on the Reports relating to the Discrimination (Employment and
Occupation) Convention and Recommendation, 1958. International Labour
Conference, 56th session, Geneva, ILO, Report III (Part 4B), 1972.
General survey on the Reports relating to the Employment Policy Convention
and Recommendation, 1964. International Labour Conference, 57th ses-
sion, Geneva, ILO, Report III (Part 4B), 1972.
The IL0 and human rights. Report presented by the International Labour
Organisation to the International Conference on Human Rights, 1968, Ge-
neva, ILO, 1968, 118 p.
IL0 principles, standards and procedures concerning freedom of association.
1978, 25 p.
The impact of international labour Conventions and Recommendations. 1976,
vi, 104 p.
The International Labour Code, 1951. A systematic arrangement of the Conven-
tions and Recommendations adopted by the International Labour Confer-
ence, 1919-51, with appendices embodying other standards of social policy
framed by or with the co-operation of the International Labour Organisation
1919-51, 1952, 2 vol.
International labour standards. Public information booklet, 1978, 48 p.
International labour standards. A workers education manual. 1978, 98 p.
Making work more human. Working conditions and environment. Report of the
Director-General, Geneva, ILO, 1975, 122 p.
Manual on procedures relating to international labour Conventions and Rec-
ommendations. 1975, iv, 29 p.
Minimum Age: General Survey by the Committee of Experts on the Application
of Conventions and Recommendations. International Labour Conference,
67th Session, Geneva, 1981, Report III (Part 4B), 214 p.
Poverty and minimum living standards: the role of the ILO. International
Labour Conference, 54th session, Geneva, ILO, 1970, Report I (Part l),
122 p.
Reports by the Committee of Experts on the Application of Conventions and
Recommendations of the International Labour Organisation on progress
in achieving observance of the provisions of articles 6 to 9 of the Zntema-
tional Covenant on Economic, Social and Cultural Rights. UN dots:
E/1978/27 (1978), E/1979/33 (1979) and E/1980/35 (1980).
Reports of the Committee of Experts on the Application of Conventions and
Recommendations. General report and observations concerning particular
countries. Submitted each year to the International Labour Conferences
as Report III (Part 4A).
Termination of employment. General survey on the Reports relating to the ter-
mination of employment recommendation, 1963 (No. 119). International
Labour Conference, 59th session, Geneva, ILO, Report III (Part 4B),
1974.
Trade union rights and their relation to civil liberties. International Labour
Conference, 54th session, Geneva, ILO, Report VII, 1970.
3. United Nations Educational, Scientific and Cultural Organization

Activities of Unesco in connection with the promotion of human rights. Paris,
Unesco, 1968.
Apartheid: Its effects on education, science, culture and information. 2nd ed.
revised, Paris, Unesco, 1972.
ARCINIEGAS, German. La culture, droit de lhomme. Liege, Sciences et lettres.
Paris, Librairie du Recueil Sirey, n.d., 51 p. (Droits de Ihomme, 4).
Birthright of man. A selection of texts prepared under the direction of Jeanne
Hersch. Paris, Unesco, 1968, 591 p.
BOK, Bart. Freedom of science, m Freedom and culture, London, Wingate,
1950, 270 p.
Bulletin for the Teaching of Human Rights. Paris, Unesco, Vol. 1, No. 1 issued
December 1980. To be published biannually.
Cultural rights as human rights. Paris, Unesco, 1970, 125 p. (Studies and docu-
ments on cultural policies).
Final report of a Colloquium on the New Human Rights: The Rights of Solidar-
ity, Mexico City, 12-15 August 1980, Dot. SS-80iCONF.806112 (1980).
Final Report of an Expert Meeting on Human Rights, Human Needs and the
Establishment of a New International Economic Order, Paris, 19-23 June
1978, Dot. SS.78/CONF.630/12 (1978).
Final Report of a Meeting of Experts on the Place of Human Rights in Cultural
and Religious Traditions, Bangkok, 3-7 December 1979, Dot. SS.79/CONF.
607110(1980).
Four statements on the race question. Paris, Unesco, 1969, 56 p.
Freedom and culture. Introduction by Julian Huxley. London, Wingate, 1950,
270 p. Reprinted by Books Libraries Press, Freeport, N.Y., 1971.
Human Rights Aspects of Population Programmes: With Special Reference to
Human Rights Law. Paris, Unesco, 1977, 154 p.
Human rights. Comments and interpretations. A symposium edited by Unesco
with an introduction by Jacques Maritain. London, Wingate, 1949, 288 p.
Human rights studies in universities. Report prepared with the financial assis-
tance of Unesco, under the direction of Karel Vasak, by T.E. McCarthy,
J.B. Marie, S.P. Marks and L. Sirois. Paris, Unesco, 1972(mimeographed).
Published in French in Revue des droits de IhommelHuman rights jour-
nal, Vol. VI, No. 1, 1973.
Illiteracy and human rights. Published on the occasion of the International Year
for Human Rights. Paris, Unesco, 1968, 15 p.
Implementation of the Recommendation concerning education for international
understanding, co-operation and peace and education relating to human
rights and fundamental freedoms. Report of a meeting of experts held
Unesco House, Paris, 15-19 March 1976. Paris, Unesco, 1976.
INTERNATIONAL FEDERATION OF SOCIETIES OF PHILOSOPHY.
Enquete sur la liberte. Published with the assistance of Unesco. Paris,
Hermann, 1953, iv, 375 p. (Actualites scientifiques et industrielles,
1199).
JUVIGNY, Pierre. The fight against discrimination: towards equality in educa-
tion. Paris, Unesco, 1962, 2nd ed. 1965.
KIDD, Sheila. Some suggestions on teaching about human rights. Paris, Unesco,
1968, 155 p. Contribution to the International Human Rights Year (1968).
LEVIN, Leah. Human Rights: Questions and Answers, Paris, Unesco, 1981,
86 p.
Meeting of experts on the ethical problems posed by recent progress in biology.
Varna, Bulgaria, W-27 June 1975. Final report. Paris, Unesco, 30 Sep-
tember 1975 (SHCi5iCONF.605121).
MIALARET, Gaston (Ed.). The Childs Right to Education. Paris, Unesco, 1979,
258 p.
MORRIS, Ben. Some Aspects of Professional Freedom of Teachers. Lausanne,
Unesco, 1977, 213 p.
PIAGET, Jean. Le droit ?Lleducation dans le monde actuel. Liege, Sciences et
lettres. Paris, Librairie du Recueil Sirey, n.d., 57 p. (Droits de Ihomme,
1).
Race as news. Paris, Unesco, 1974, 173 p.
Race, science and society. Edited and introduced by Leo Kuper. Paris, Unesco/
George Allen and Unwin, 1975, 365 p.
Reports of the Committee on Conventions and Recommendations on the reports
of States on the implementation of the Convention against Discrimination
in Education: 1st report, 1968, Doc.15Cill; 2nd report, 1972, Doc.17Ci15;
3rd report, 1978, Doc.20Ci40 and 1980, Doc.21C/27.
Rights and responsibilities of youth. Paris, Unesco, 1972 (Educational studies
and documents, 6).
Science, technology and the law, Impact of science on society, Vol. XXI, No. 3,
July-September 1971. Paris, Unesco.
Some Suggestions on Teaching about Human Rights. Paris, Unesco, 1968, 155 p.
Study of the procedures which should befollowed in the examination of cases and
questions which might be submitted to Unesco concerning the exercise of
human rights in the spheres of its competence, in order to make it more
effective. Unesco, Executive Board, 102nd session. Paris, 7 April 1977
(Dot. 102iEXi19).
The Teaching of human rights. (Proceedings of the International Congress on the
Teaching of Human Rights, Sept. 1978, Vienna). Paris, Unesco, 1980,
274 p.
Les Textes Normatifs de Wnesco. Paris, 1980, loose-leaf edition.
Unescos contribution to peace and its tasks with respect to the promotion of
human rights and the elimination of colonialism and racialism, General
Conference Dots. 2OC/14(1978) and 21Ci14 (1980).
UNESCO Secretariat. Unesco and the Challenges of Today and Tomorrow:
Universal Affirmation of Human Rights, in Ramcharan (Ed.), Human
Rights, op. cit.
The Universal Declaration of Human Rights. A guide for teachers. Paris, Unesco,
1951, 87 p. (Towards world understanding, 8).
Women, education, equality: a decade of experiment. Paris, Unesco, 1975, 109 p.
World Problems in the Classroom: A Teachers Guide to Some United Nations
Tusks. Paris, Unesco, 1973, rev. ed. 1981.
ZAVALA, Silvio. The defence of human rights in Latin America (XVZth-XVIIIth
centuries). Paris, Unesco, 1964, 65 p. (Race and Society).
4. World Health Organization

Development of codes of medical ethics, containing, inter alia, in an Annex, a
draft Body of Principles prepared by the Council for International Organi-
zations of Medical Sciences and entitled Principles of medical ethics rele-
vant to the role of health personnel in the protection of persons against
torture and other cruel, inhuman or degrading treatment or punishment,
UN Dot. A/34/273 (1979).
Health Aspects of Human Rights with Special Reference to Developments in
Biology and Medicine. Geneva, WHO, 1976, 48 p.
Medical Experimentation and the Protection of Human Rights. Proceedings of
the 12th CIOMS Round Table Conference, Cascais, Portugal, 1978, N.
HowardJones and Z. Bankowski (Eds.), Geneva, WHO, 1980, 249 p.
Protection of Human Rights in the Light of Scientific and Technological Progress
in Biology and Medicine. Proceedings of the 8th CIOMS Round Table
Conference, S. Btesh (Ed.), Geneva, WHO, 1974, 384 p.
Use of Human Tissues and Organs for Therapeutic Purposes: A Survey of Exist-
ing Legislation. Geneva, WHO, 1969, 19 p.
W.H.O., Report to the UN Economic and Social Council on the rights covered by
Article 12 of the International Covenant on Economic, Social and Cultural
Rights, UN Doc.Ei198014 (1980).
5. Food and Agriculture Organization of the United Nations
A Right to Food. A Selection from Speeches by Addeke H. Boerma, Director-
General of FA0 1968-1975, Rome, FAO, 1976, 177 p.
6. Council of Europe
Activities of the Council of Europe in the field of human rights. Annual report of
the Secretary-General. Strasbourg, Council of Europe.
Adhesion des communautes a la Convention Europeenne des droits de Ihomme:
memorandum de la Commission, Bulletin des Communautes Europeennes,
supplement no. 2, 1979, pp. 1-21.
Bibliography rela,ting to the European Convention on Human Rights. Stras-
bourg, 1978, 4th ed., 173 p.
Case-law topicslkiujets &jurisprudence: 1. Human rights in prison (1971). 2. Fam-
ily life (1971). 3. Bringing an application before the European Commis-
sion of Human Rights (197%). 4. Human rights and their limitations
(1971). Strasbourg, Council of Europe.
COUNCIL OF EUROPE. Collected Edition of the Travaux Preparutoires of
the European Convention on Human Rights. The Hague, Martinus Nijhoff,
8 Vols. 1981-.
-. Human Rights Files No. 5: Conditions of Detention and the European
Convention on Human Rights and Fundamental Freedoms. Strasbourg,
1981, 37 p.
-. Decisions and Reports of the European Commission of Human Rights.
Strasbourg, 1980, 256 p.
Digest of case-law relating to European Convention on human rights (1955-1967).
Heule, Belgium, editions U.G.A., 1970, 523 p.
European Commission of Human Rights: Annual Review. Published annually.

European Convention on Human Rights: National aspects. Strasbourg, Council
of Europe, 1975.
European Court of Human Rights. Series of publications. Series A: Judgements
and decisions; series B: Pleadings, oral arguments, documents.
Explanatory report on the additional protocol to the European Convention on
Extradition. Strasbourg, Council of Europe, 1975.
Human rights: Problems arising from the co-existence of the United Nations
Covenants on Human Rights and the European Convention on Human
Rights; differences as regards the rights guaranteed. Report of the Com-
mittee of experts on human rights to the Committee of Ministers. Stras-
bourg, Council of Europe, 1970, Dot. H(70)7, 93 p.
Implementation of article 57 of the European Convention on Human Rights.
(Replies of governments to the Secretary-Generals enquiry relating to the
implementation of articles 8, 9, 10 and 11 of the European Convention on
Human Rights). Memorandum prepared by the Directorate of human rights.
Strasbourg, Council of Europe, 1976.
Implementation of the Final Act of the Conference on Security and Co-operation
in Europe. Council of Europe Parliamentary Assembly, Doc.AS/Inf(77)9,
Strasbourg, 1977, 195 p.
Muss communications media and human rights. Strasbourg, Council of Europe,
1970. 31 p.
OPSAHL, Torkel. Substantive Rights. Report presented to a Colloquy on The
European Convention on Human Rights in Relation to Other International
Instruments for the Protection of Human Rights, Council of Europe
Doc.H/Coll.(78)8, Strasbourg, 1978, 53 p.
Parliamentary Conference on Human Rights, Vienna, 1971. Working papers.
Strasbourg, Council of Europe, 1971.
Reports on the 25th anniversary of the Universal Declaration and the 20th anni-
versary of the European Convention on Human Rights. Strasbourg, Coun-
cil of Europe, 1973.
The right to strike: its scope and limitations. Strasbourg, Council of Europe,
1973.
Stock-taking on the European Convention on Human Rights. European Com-
mission on Human Rights, Strasbourg, 1979, 146 p.
Yearbook of the European Convention on Human Rights. The Hague, Nijhoff,
Vol. 1, 1958/1959, published annually.
7. Organization of American States
Annual Report of the Inter-American Commission on Human Rights. Washing-
tonD.C., OAS, 1978reportissuedindoc. OEAISer.LN/l1.47/13rev.l(1979);
1979-1980report issued in dot. OEA/Ser.GICP/doc.1110/80 (1980).
Annuario intewxmericano de o?zrechoshuwumosllnter-American yearbook cm human
rights. Washington, D.C., OAS, General Secretariat, 1969-1970(1976).
Comparative study of the International Covenant on Human Rights together
with the Optional Protocol to the International Covenant on Civil and
Political Rights adopted by the U.N. (December 1966), the draft Conven-
tion on Human Rights of the Inter-American Council of Jurists (fourth
meeting, 1959), and the text of the amendments to the IACJ draft adopted
by the Inter-American Commission on Human Rights (October 1966 and
January 1967). Washington, D.C., OAS, 1968.
Conferencia especializada inter-americana sobre derechos humanos. San Jose,
Costa Rica, 7-22 de noviembre de 1969. Actas y documentos. Washington,
D.C., OAS, 1973, 534 p.
Estudio sobre la relation jurtdica entre el respeto de 10s derechos humanos y el
ejercicio de la democracia. Washington, D.C., OAS, 1960, 39 p.
Handbook of existing rules pertaining to hum&n rights. Washington, D.C., OAS,
1979, 75 p.
Human rights and representative democracy. Washington, D.C.,. OAS, 1965,
15 p.
Human rights in the American States. Study prepared in accordance with reso-
lution XXVII of the 10th Inter-American Conference. Preliminary ed.
Washington, D.C., OAS, 1960, 226 p.
INTE.R-AMERICAN COMMISSION OF WOMEN. SPECIAL COMMITTEE
FOR STUDIES AND RECOMMENDATIONS FOR THE WORLD CON-
FERENCE OF INTERNATIONAL WOMENS YEAR. Final report,
committee meeting results, basic documents. Washington, D.C., OAS,
1975, 296 p.
Statute of the Inter-American Commission on Human Rights, OAS dot. OEA/Ser.P,
AG/Com.l/doc.22/79 rev.2 (1979).
Statute of the Inter-American Court of Human Rights, OAS dot. OEA/Ser.P,
AGidoc. 1196irev. 1 (1979).
8. Non-Governmental Organizations
AMNESTY INTERNATIONAL. The Death Penalty. London, Amnesty Inter-
national Publications, 1979, 209 p.
-. Report, published annually, 1978, 320 p.; 1979, 220 p.; 1980,408 p.; 1981,
426 p.
-. Report on Torture. London, G. Duckworth Ltd., 1973.
ANTI-SLAVERY SOCIETY. Human Rights and Development Working Papers.
Published occasionally, London.
CENTRE FOR THE INDEPENDENCE OF JUDGES AND LAWYERS. CZJL
Bulletin, Geneva.
CHALLIS, James, and ELLIMAN, David, in association with the ANTI-
SLAVERY SOCIETY. Child Workers Today. Quartermaine, Sunbury,
U.K., 1979, 170 p.
Derechos humanos en las zonas rurales. Report of a seminar organized by the
International Commission of Jurists and the Latin-American Council for
Law and Development, Bogota, September 1979,Bogota, SociedadEdiciones
Internacionales, 1979, 306 p.
Development, Human Rights and the Rule of Law. Report of a Conference Held
in The Hague on 27 April-l May 1981, convened by the International
Commission of Jurists, Oxford, Pergamon, 1981, 237 p.
FAWCETT, James. The International Protection of Minorities. London, 1979,
Minority Rights Group report No. 41, 20 p.
FONSECA, G. DA. How to file complaints of human rights violations: a practi-
procedures. Geneva, World Council of

cal guide to inter-governmental
Churches, 1975, 152 p.
FRIEDMAN, Julian, and WISEBERG, Laurie. Teaching Human Rights. Wash-
ington, D.C., Human Rights Internet, 1981, 134 p.
GARLING, M. (Ed.). The Human Rights Handbook: A Guide to British and
American International Human Rights Organizations. New York, Facts
on File, 1979, 299 p.
GAUTIER, JJ; MACDERMOT, N.; MARTIN, E.; and VARGAS, F. de. Tor-
ture: How to Make the Znternational Convention Effective. Geneva, Inter-
national Commission ofJurists and Swiss Committee against Torture, 1979,
46 p.
GREENFIELD, Richard. Research Manual on Human Rights. Washington,
D.C., Human Rights Internet, 1982.
Human Rights and Development: Report of a Seminar on Human Rights and
their Promotion in the Caribbean. Barbados, September 1977, organised
by the International Commission of Jurists and the Organisation of Com-
monwealth Caribbean Bar Association, Bridgetown, The Cedar Press, 1978,
190 p.
Human Rights Directory: Latin America, Africa, Asia. Washington, D. C., Human
Rights Internet, 1980, 244 p.
Human Rights in a One-Party State. International Seminar on Human Rights,
their Protection and the Rule of Law in a One-Party State, convened by
the International Commission of Jurists, London, Search Press, 1978,
133 p..
HUMAN RIGHTS INTERNET REPORTER, Washington, D.C., published every
two months except during July/August, Vol. 1, 1976. Until Vol. 6 (Fall
1980) the Reporter was titled the HRI Newsletter.
HUMAN RIGHTS INTERNET and MCPL EDUCATION FUND. Human Rights
Directory 1979. Washington, D.C., 1979, 155 p.
Index on Censorship (London). Published every two months.
INTERNATIONAL COMMISSION OF JURISTS. The Review (Geneva).
Quarterly.
------. ICJ Newsletter, Quarterly Report.
-. The Rule of Law and Human Rights.Geneva, 1966, 83 p.
INTERNATIONAL COMMITTEE OF THE RED CROSS. International Re-
view of the Red Cross. Geneva, published every two months.
INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW. Human rights
as the basis of of international humanitarian law. Proceedings of the
International Conference on Humanitarian Law, San Remo, Italy, 24-27
September 1970. Lugano-Bellinzona, Switzerland, Instituto Editoriale
Ticinese, 385 p.
INTERNATIONAL LEAGUE FOR HUMAN RIGHTS. Annual Review. New
York.
INTERNATIONAL YOUTH AND STUDENT MOVEMENT FOR THE
UNITED NATIONS. Political Conscience: War Resistance as a Human
Right. Geneva, ISMUN, 1978, 32 p.
North American Human Rights Directory. Washington, D.C., Human Rights
Internet, 1980, 182 p.
Numero special relatif au colloque de Dakar sur le developpement et les droits de

lhomme, organise par IAssociation Senegalaise dEtudes et de Recher-
ches Juridiques et la Commission Internationale de Juristes, September
1978, Revue Sbnegalaise de Droit, December 1977, No. 22, 255 p.
PALLEY, Claire. Constitutional Law and Minorities. London, 1978, Minority
Rights Group report No. 36, 20 p.
PICTET, J. Humanitarian Law and the Protection of War Victims. Leyden,
A. W. Sijthoff, Geneva, Institut Henry-Dunant, 1975.
-. The principles of international humanitarian law. Geneva, International
Red Cross Committee, 1967, 66 p.
RED CROSS, The Geneva Conventions of 12 August 1949. Commentary pub-
lished under the General Editorship of Jean S. Pictet, Vol. I-IV, Geneva,
1952-1960.
-. International Red Cross Handbook, 2nd edition, 1971.
SOUZA, Frances d. The Refugee Dilemma: International Recognition and Ac-
ceptance. London, 1980, Minority Rights Group report No. 43, 19 p.
TAJFEL, Henri. The Social Psychology of Minorities. London, 1978, Minority
Rights Group report No. 38, 20 p.
WHITE, Helen C., and CAZAMIAN, Madeleino. Human rights: the tusk before
us. London, International Federation of University Women, n.d., 100 p.
WORLD PEACE THROUGH LAW CENTER. The law and refugees. Washing-
ton, D.C., The Center, 1976, 45 p.
-. The ra,tification of international human rights treaties: a report of the
Committee on. Human Rights. Washington, D.C., World Association of
Lawyers, 1976, 78 p.
II. Analytical Works

A. General Works and Articles
ACKERMAN, Steven. Torture and Other Forms of Cruel and Unusual Punish-
ment in International Law, Vanderbilt Journal of Transnational Law,
Vol. 11, 1978, pp. 653-707.
AIT-AHMED, Hocine. LAfro-fascisme: les droits de lhomme dans la Charte et
la pratique de 1Organisation de lunite africaine. Paris, LHarmattan,
1980, 437 p.
AJAMI, F. Human Rights and World Order Politics, Alternatives (New Delhi),
Vol. 3, 1978, pp. 351-83.
AL-AILI, Abd-el-hakim. Houqouq al-insan filsharia al-islamiyya (Human Rights
in Islamic Law). Assyassat ad-dawliyya, Cairo, No. 39, January 1975, pp.
20-27.
AL-ASFAHANI, Nabih. Mawqif al-djami a al-Arabiyya min houqouq al-insan
(The position of the Arab League on human rights). Assyassat ad-dawliyya,
Cairo, No. 39, January 1975, pp. 28-33.
ALDRICH, George H. New Life for the Laws of War, American Journal of
International Law, Vol. 75, No. 4, 1981, pp. 764-83.
ALEXANDER, Yonah, and FRIEDLANDER, Robert (Eds.). Self-Determination:
National Regional and Global Dimensions. Boulder, Westview Press,
1981, 371 p.
ALSTON, Philip. Human Rights and Basic Needs: A Critical Assessment,

Revue des droits de 1hommelHuman rights journal (Paris), Vol. XII, No.
1-2, 1979, pp. 19-67.
-. Human Rights and the New International Development Strategy, Bul-
letin of Peace Proposals (Oslo), Vol. 10, No. 3, 1979, pp. 281-90.
-. Linking Trade and Human Rights, German Yearbook of International
Law (Berlin, FRG), Vol. 23, 1980, pp. 126-58.
-. Peace as a Human Right, Bulletin of Peace Proposals (Oslo) Vol. 11,
No. 4, 1980, pp. 319-30.
-. Prevention Versus Cure as a Human Rights Strategy, in Development,
Human Rights and the Rule of Law, op. cit., pp. 31-108.
AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE. Essen-
tial Human Rights. Philadelphia, 1946, 196 p.
ANDREW& J.A. (Ed.). Human Rights in Criminal Procedure: A Comparative
Study. The Hague, Martinus Nijhoff, 1981, 475 p.
ANTALFFY, Gyorgy. On Human Rights, Hungarian Law Review (Budapest),
No. 112, 1978, pp. 5-34.
ARANGIO-RUIZ, Gaetano. Human Rightsand Non-Intervention in the Helsinki
Final Act, Recueil des tours, (Hague Academy of International Law), IV,
Vol. 157, 1977, pp. 195-331.
ARANGUREN, J.L. et al. Los Derechos Humanos, Cuaderno Cienia Nueva,
Madrid, 1968.
ASBECK, F.M. The Universal Declaration of Human Rights and its predeces-
sors. Leyden, 1949.
ASHOOR, Yadh ben. Islam and International Humanitarian Law, International
Review ofthe Red Cross (Geneva), March-April 1980, No. 215, pp. 59-69.
AURENCHE, Guy. Laujourdhui des droits de lhomme. Paris, Nouvelle Cite,
1980, 265 p.
BAMMATE, N. Le destin et la liberte selon lIslam, Lage nouveau (Paris), no
66, Octobre 1951.
BARTOLOMEI, Donato Massimo. La protezione dei dir&i umani nellordinamento
internazionale. Rome, Sot. ed. de1 Foro italiano, 1958, 116 p.
BELLO, Emmanuel. Shared Legal Concepts between African Customary Norms
and International Conventions on Humanitarian Law, Indian Journal of
International Law, Vol. 21, 1981, pp. 79-95.
BIANCHI GUNDIAN, Manuel. La paz y 10s derechos humanos. Santiago de
Chile, Editorial Andres Bello, 1969, 92 p.
BILDER, Richard B. Rethinking international human rights: some basic ques-
tions, Revue des droits de 1hommelHuman rights journal (Paris), Vol.
II, No. 4, 1969, pp. 557-608.
BISSELL, J. Negotiations by International Bodies and the Protection of Human
Rights, Columbia Journal of Transnational Law, Vol. 7, 1968, pp.
90-134.
BLISHCHENKO, I.P. The Impact of the International Economic Order on
Human Rights in Developing Countries, Bulletin of Peace Proposals (Oslo),
Vol. 11, No. 4, 1980, pp. 375-86.
BOLTE, Paul Emile. Les droits de lhomme et la papaute contemporaine. Synthese
et textes. Montreal, Editions Fides, 1975, 428 p. (La pensee chretienne).
BOSON, Gerson de BRITTO MELLO. Znternacionalixacao dos direitos do homen.

1. ed. Sao Paulo, Sugestdes Literaarias, 1972, 134 p.
BOSSUYT, Marc. Linterdiction de la discrimination duns le droit international
des droits de lhomme. Brussels, E. Bruylant, 1976, 262 p,
-. The Direct Applicability of International Instruments on Human Rights,
Revue belge de droit international (Brussels), Vol. 15, 1980, pp. 317-44.
BOTHE, M.; PARTSCH, K.; and SOLF, W. New Rules for Victims of Armed
Conflicts. The Hague, Martinus Nijhoff, 1981, 1100 p.
BOUTROS-GHALI, B. Al-aqualiyyat wa houqouq al-insan fil-fiqh al-dawli (Mi-
norities and human rights in international legislation). Assyassat ad-dawliyya
(Cairo), No. 39, January 1975, pp. 10-20.
BOVEN, Theodoor C. Van. De volkenrechtelijke bescherming van de godsdienst-
vrijheid. Editions Van Gorcum, 1977, 305 p.
-. Fact-finding in the sphere of human rights, Israel Yearbook on Human
Rights (Tel Aviv), Vol. 3, 1973, pp. 93-117.
-. Human Rights and the New International Order, Bulletin of Peace
Proposals (Oslo), Vol. 11, No. 4, 1980, pp. 369-74.
-. Some remarks on special problems relating to human rights in develop-
ing countries, Revue des droits de 1hommelHuman rights journal (Paris),
Vol. III, No. 3, 1970, pp. 383-96.
BRANCHU, Francoise. Le probleme des minor&s en droit international depuis
la seconde guerre mondiale. Lyons, Impr. Bose F&es, 1959, 253 p.
BRUEGEL, J.W. A neglected field: the protection of minorities, Revue des
droits de ZhommeiHuman rights journal (Paris), Vol. IV, 1971, No. 2-3,
pp. 413-42.
BRUNET, Rem% La garantie internationale des droits de lhomme daprbs la
Charte de San Francisco. Geneva, C. Grasset, 1947, 383 p., bibliography.
BUERGENTHAL, Thomas (Ed.). Human Rights, International Law and the
Helsinki Accords. Montclair; Allanheld, Osmun and Co., and New York;
Universe Books, 1977, under the auspices of the American Society of In-
ternational Law, 203 p.
-. International and regional human rights law and institutions: some ex-
amples of their interactions, Texas International Law Journal (Austin,
Tex.), Vol. 12, No. 2 and 3, 1977, pp. 321-30.
-. The right to receive information across national boundaries, in ASPEN
INSTITUTE FOR HUMANISTIC STUDIES, Control of the direct broad-
cast satellite: values in conflict, 1974, pp. 73-84.
-1 and TORNEY, Judith V. International human rights and international
education. Washington, D.C., U.S. National Commission for Unesco, 1976,
211 p.
BURROWS, Noreen. The Promotion of Womens Rights by the European Eco-
nomic Community, Common Market Law Review (Leyden), Vol. 17, No.
2, 1980, pp. 191-209.
CALOGEROPOULOS-STRATIS, Aristidis. Droit humanitaire et droits de lhomme.
The Hague, Martinus Nijhoff, 1981, 264 p.
-. Le droit des peuples a disposer deux-mdmes. Brussels, E. Bruylant,
1973, 388 p.
CAMARGO, Pedro Pablo. L amparo au Mexique et en Amerique latine comme
instrument de protection des droits de lhomme, Revue des droits de

ZhommelHuman rights journal (Paris), vol. I, no 3, 1968, pp. 332-62.
-. Problemcitica mundial de 10s derechos humenos. BogotB, Universidad la
Gran Colombia, 1974, 378 p., bibliography.
-. La proteccidn juridica de 10s derechos humanos y la democracia en
Am6rica: 10s derechos humanos y el derecho international. MCxico, Edit.
Excelsior, 1960, 481 p.
-. The right to judicial protection: amparo and other Latin American
remedies for the protection of human rights, Lawyers of the Americas
(Coral Gables, Fla.), Vol. 2, No. 2, 1971, pp. 191-230.
CAREY, John. International protection of human rights. Dobbs Ferry, N.Y.,
Oceana, 1968, 116 p.
-. Procedures for international protection of human rights, Zowa Law
Review (Iowa City, Iowa), Vol. 53, October 1967, pp. 291-324.
CARILLO SALCEDO, J.A. Derecho al desarrollo coma derecho de la persona
humana, Revista espafiola de derecho international (Madrid), Vol. 25,
1972, pp. 119-25.
CASCAJO CASTRO, JosBLtis et al. Los derechos humanos: significaci6n, estatuto
juridico y sistema. Sevilla, Secretariado de Publicacione de la Universidad
de Sevilla, 1979, 332 p.
CASSESE, Antonio. The Approach of the Helsinki Declaration to Human Rights,
Vanderbilt Journal of Transnational Law, Vol. 13, 1980, pp. 275-91.
-. (Ed.). The New Humanitarian Law of Armed Conflict. Dobbs Ferry,
N.Y., Oceana, 1979, 501 p.
-1 and JOUVE, Edmond (Eds.). Pour un droit des peuples: esBais sur la
dklaration dAlger. Paris, Berger-Levrault, 1978, 220 p.
CASSIN, Ren&La DCclaration universelle et la mise en oeuvre des droits de
lhomme, Recueil des tours (Hague Academy of International Law), 1951,
pp. 241-367.
-. De la place faite aux devoirs de lindividu dans la Dhclaration universelle
des droits de lhomme, Mklanges Modinos, Paris, 1968, pp. 479-88.
-. Science and human rights, Impact of science on society (Paris, Unesco),
Vol. XXII, No. 4, October-December 1972, pp. 329-39.
CASTAN TOBENAS, Jo&. Los derechos de1 hombre. 2nd ed. Madrid, Reus,
1976. 200 p.
CASTBERG, Frede. Natural law and human rights, Revue des droits de
ZhommeiHuman rights journal (Paris), Vol. I, No. 1, 1968, pp. 14-40.
CENTRE DE DROIT INTERNATIONAL DE LINSTITUT DE SOCIOLOGIE
DE LUNIVERSITE LIBRE DE BRUXELLES. Droit humanitaire et
conflits am&es. Editions de IUniversitk de Bruxelles, 1976, 296 p.
CENTRE DETUDES EUROPEENNES, UNIVERSITE CATHOLIQUE DE
LOUVAIN, DEPARTEMENT DES DROITS DE LHOMME. ler colloque:
Les droits de lhomme et les personnes morales. Brussels, E. Bruylant,
1970, 166p.; 2e colloque: Vers une protection efficace des droits tkonomiques
et sociaux. Louvain, Vander, 1973, 209 p.
CHALIDZE, Valery. The Humanitarian Provisions of the Helsinki Accord: A
Critique of their Significance, Vanderbilt Journal of Transnational Law,
Vol. 13, 1980, pp. 429-50.
CHALMERS, Donald. Human rights and what is reasonably justifiable in a

democratic society, Melanesian Law Journal (Australia), Vol. 3, April
1975, p. 92.
CHATTERJEE, S.K., Terrorism and Certain Legal Aspects of Human Rights,
International Relations (London), Vol. VI, No. 5, 1980, pp. 749-68.
CHEN, Lung-chu. Self-determination as a human right, in Toward world order
and human dignity, New York, Free Press, 1976, pp. 198-261.
CHERNICHENKO, S.V. Borba s narushenijami prav cheloveka i mezhdunarodnye
protsedury (Struggle against violations of human rights and the interna-
tional procedures). Sovetskoy gosudarstvo i pravo (Moscow), No. 1, 1980,
pp. 91-99.
CHKHIKVADZE, V. Armed Conflict and Human Rights, International Af-
fairs (Moscow), Vol. 11, 1979, pp. 43-51.
-. Sotsialisticheskij gumanixm i prava cheloveka (Socialist humanism and
human rights), Moscow, 1978.
-. Human Rights and Non-Znterference with the Znternal Affairs of State,
Znternational Affairs (Moscow), 2 November 1978, pp. 22-30.
CHONCHOL, Jacques. The Declaration on Human Rights and the Right to
Development: The Gap between Proposal and Reality, in Development,
CHOSSUDOVSKY, M. The Political Economy of Human Rights, Bulletin of
Peace Proposals (Oslo), Vol. 10, 1979, pp. 172-78.
CLAUDE, Richard Pierre (Ed.). Comparative human rights. Baltimore, Md.,
Johns Hopkins University Press, 1976, 410 p.
COHN, Haim A. The right and duty of resistance, Revue des droits de
ZhommeiHuman rights journal (Paris), Vol. I, No. 4, 1968, pp. 491-517.
COLONNESE, Louis M. (Ed.). Human rights and the liberation of man in the
Americas. Notre Dame, Ind., University of Notre Dame Press, 1970,
278 p.
COMMISSION INTERNATIONALE DES JURISTES. Lincidence des reali-
sations technologiques sur le droit & la vie privee, Revue internationale
des sciences sociales (Paris, Unesco), vol. XXIV, no 3, 1972, pp. 441-53.
COULSON, N.J. The state and the individual in Islamic law, The International
and Comparative Law Quarterly (London), Vol. 6, No. 1, 1957, pp. 49-60.
CRANSTON, Maurice. What are human rights? London, Bodley Head, 1973,
170 p.
CUADRA, Hector. La proyeccion international de 10s derechos humanos.
1st ed., Mexico, UNAM, Instituto de Investigaciones Jurfdicas, 1970,
308 p.
DELBRUCK, Jost. Die Rassenfrage als Problem des Volkerrechts und nationaler
Rechtsordnungen. Frankfurt, Athenaurn, 1971, 324 p., bibliography.
Development, Human Rights and the Rule of Law: Report of a Conference held
in The Hague on 27 April-l May 1981 convened by the International
Commission of Jurists, Oxford, Pergamon Press, 1981, 237 p.
DIALLO, Issa ben Yacine. Les rkfwiks en Afrique: de la conception a lapplication
dun instrument juridique de protection. Vienna, Universitats Veregs-
buchhandlung GES MBH, 1974, 239 p.
DIAS, Clarence J. Realizing the Right to Development: The Importance of
Legal Resources, in Development, Human Rights and the Rule of Law,

op. cit., pp. 187-98.
DIMITRIJEVIC, Vojin. The Place of Helsinki on the Long Road to Human
Rights, Vanderbilt Journal of Transnational Law, Vol. 13, 1980, pp.
253-73.
DINSTEIN, Y. Human Rights: The Quest for Concretization, Israel Yearbook
on Human Rights (Tel Aviv), Vol. 1, 1971, pp. 13-28.
-. Science, Technology and Human Rights, Dalhousie Law Journal, Vol.
5, 1979, pp. 155-68.
-. The New Geneva Protocols: A Step Forward or Backward?, The Year-
book of World Affairs 1979 (London), Vol. 33, pp. 265-83.
DIREITO, Carlos Albert0 Menezes. 0 Estado modern0 e a prote@o dos direitos
de homen. Rio de Janeiro, Freitas Bastos, 1968, 245 p., bibliography.
DOMB, I. Jus Cogens and Human Rights, Israel Yearbook on Human Rights
(Tel Aviv), Vol. 6, 1976, pp. 104-21.
-. Who is a Victim of a Violation of Human Rights?, Israel Yearbook on
Human Rights (Tel Aviv), Vol. 5, 1975, pp. 181-201.
DOMINGUEZ, Jorge I., and RODLEY, Nigel. Human rights and international
relations. New York, McGraw-Hill, 1976, 160 p.
DOMINGUEZ, J.I.; RODLEY, N.S.; WOOD, B.; and FALK, R. Enhancing
Global Human Rights, 1980%Project/Council on Foreign Relations, New
York, McGraw-Hill, 1979, 270 p.
DOWRICK, F.E. (Ed.). Human Rights: Problems, Perspectives and Texts.
Farnborough, England, Saxon House, 1979, 223 p.
DRAPER, G.I.A.D. The Geneva Conventions of 1949, Recueil des tours (Hague
Academy of International Law), Vol. 1, 1965, pp. 63-162.
-. The relationship between the human rights regime and the law of armed
conflict, Israel Yearbook on Human Rights (Tel Aviv), Vol. 1, 1971,
pp. 191-207.
Les droits de lhomme: droits collectifs ou droits individuels: actes du Collogue de
Strasbourg des 13 et 14 mars 1979. Paris, Librairie generale de droit et de
jurisprudence, 1980, 220 p.
DROST, Pieter N. The crime of state: penal protection forfundamental freedoms
of persons and peoples. 1. Humanicide. 2. Genocide. Leyden, Sijthoff,
1959, 2 vol.
-. Human rights as legal rights. The realization of individual human rights
in positive international law. Leyden, Sijthoff, 1965, 272 p.
DUCHACEK, Ivo D. Rights and liberties in the world today: Constitutional
promise and reality. Santa Barbara, Calif., ABC-CLIO, 1973, 269 p.
DUNSHEE DE ABRANCHES, Carlos A. Prote@o international dos direitos
humanos. Rio de Janeiro, Freitas Bastos, 1964, 159 p., bibliography.
DUPUY, RenCJean (Ed.). The Right to Health as a Human Right. Papers of a
workshop of the Hague Academy of International Law and the United
Nations University, The Hague, 27-29 July 1978, Sijthoff and Noordhoff,
1979.
-. The Right to Development at the International Level. Papers of a work-
shop of the Hague Academy of International Law and the United Nations
University, The Hague, 16-18 October 1979, Sijthoff and Noordhoff, 1980.
EIDE, Asbjorn. Choosing the Paths to Development: National Options and

International Regulation. The Implications for Human Rights, Bulletin of
Peace Proposals (Oslo), Vol. 11, No. 4, 1980, pp. 349-60.
-. Human rights and non-intervention in the all-European system, Bulle-
tin of Peace Proposals (Oslo), Vol. 8, No. 3, 1977, pp. 209-15.
-7 and SHOU, August (Eds.). International Protection of Human Rights.
Proceedings of the Seventh Nobel Symposium. Oslo, 25-27 September 1967,
Almquist and Wiksell, 1968.
ELIAN, George. The Principle of Sovereignty over Natural Resources. Alphen
aan den Rijn, Sijthoff and Noordhoff, 1979, 238 p.
ERMACORA, Felix. Menschenrechte in der sich wandelnden Welt. Vienna, Verlag
der osterreichischen Akademie der Wissenschaften, 1974, 629 p.
\ -. International enquiry commissions in the field of human rights, Revue
des droits de IhommelHuman rights journal (Paris), Vol. I, No. 2, 1968,
pp. 180-218.
-. Partiality and impartiality of human rights inquiry commissions of inter-
national organizations, Rend Cassin amicorum discipulorumque liber I,
Paris, 1969, pp. 64-74.
ESIEMOKHAI, Emmanuel Omoh. Towards Adequate Defence of Human Rights
in Africa, Indian Journal of International Law, Vol. 21, 1981, pp. 141-48.
ESPIRITU, A.C. Keeping Human Life Human: Altering Structures of Power,
Economic Benefits and Institutions, in Development, Human Rights and
the Rule of Law, op. cit., pp. 175-80.
EVERTS, Philip. Some Notes on the Connection between Disarmament and
Human Rights, Bulletin of Peace Proposals (Oslo), Vol. 12, No. 3, 1981,
pp. 271-76.
EZE, Osita C. Les droits de lhomme et le sous-developpement, Revue des
droits de IhommelHuman rights journal (Paris) Vol. XII, No. l-2, 1979,
pp. 5-18.
EZEJIOFOR, G. Protection of human rights under law. London, 1964.
FALCONER, Alan (Ed.). Understanding Human Rights: An Interdisciplinary
and Interfaith Study. Dublin, Irish School of Ecumenics, 1980, 242 p.
FALK, Richard. Comparative Protection of Human Rights in Capitalist and
Socialist Third World Countries, Universal Human Rights (New York),
Vol. 1, No. 2, 1979.
-. Human Rights and State Sovereignty. New York, Holmes and Meier,
1981, 251 p.
-. Militarization and human rights in the third world, Bulletin of Peace
FENSTERHEIM, G. David. Toward an International Law of Human Rights
Based upon the Mutual Expectations of States, Virginia Journal of Zn-
ternational Law, Vol. 21, No. 1, 1980, pp. 185-210.
FERENCZ, Benjamin. An International Criminal Court: A Step Toward World
Peace. 2 Vols., Dobbs Ferry, N.Y., Oceana, 1980, 673 p.
FERGUSON, Clyde. Global Human Rights: Challenges and Prospects, Denver
Journal of International Law and Policy, Vol. 8, 1979, pp. 367-77.
FLATHMAN, R. The Practice of Rights. London, Cambridge University Press,
1976, 250 p.
FONSECA, Glenda DA, and VILLAPANDO, Waldo. Defensa de 10s derechos

humanos. Ed. Tierra Nueva SRL, 1976, 271 p.
FORSYTHE, David P. Political prisoners: the law and politics of protection,
Vanderbilt Journal of Transnational Law (Nashville, Tenn.), Vol. 9, Spring
1976, pp. 295-322.
-, and WISEBERG, L. Human Rights Protection: A Research Agenda,
Universal Human Rights (New York), Vol. 1, No. 4, 1979, pp. l-24.
FRAENKEL, Jack R.; CARTER, Margaret; and REARDON, Betty. The strug-
gle for human rights: a question of values. New York, Random House,
1975, 71 p.
FRANCK, Thomas M., and FAIRLEY, H. Scott, Procedural Due Process in
Human Rights Fact-Finding by International Agencies, American Jour-
nal of International Law (Washington, D.C.), Vol. 74, No. 2, 1980, pp.
308-45.
FREYMOND, J. Human Rights and Foreign Policy, in Ramcharan (Ed.), Human
Rights, op. cit.
GALTUNG, Johan. What Kind of Development and What Kind of Law?, in
Development, Human Rights and the Rule of Law, op. cit., pp. 121-30.
-, and WIRAK, Anders. Human needs and human rights: a theoretical
approach, Bulletin qf Peace Proposals (Oslo), Vol. 8, No. 3, 1977, pp.
251-58.
GANJI, Manouchechr. International protection of human rights. Geneva, Librairie
E. Droz, 1962, 317 p.
GARBO, Gunnar. Freedom of the press: media structure and control, Bulletin
of Peace Proposals (Oslo), Vol. 8, No. 3, 1977, pp. 233-35.
GARCIA-AMADOR, F.V. Recent Codification of the Law of State Responsibil-
ity for Znjuries to Aliens. Alphen aan den Rijn, Sijhtoff and Noordhoff,
1974, 416 p.
GARCIA BAUER, Carlos. Los derechos humanos, preoccupation universal.
Guatemala, Editorial universitaria, 1960, 532 p.
GARCIA RAMIREZ, Sergio. Los derechos humanos y el derecho penal. Mexico,
Sepsetentas, 1976, 205 p.
GARIBALDI, Oscar M. General limitations on human rights: the principle of
legality, Harvard International Law Journal (Cambridge, Mass.), Vol.
17, Summer 1976, pp. 503-57.
GARNICK, L., and TWITCHETT, C.C. Human Rights and a Successor to the
Lome Convention, International Relations (London), Vol. 6, 1979, pp.
540-57.
GAZZALI, Muhammad al-. Human Rights in the Teaching of Islam. Cairo, al
Makhtabat al-Tjariyah, 1962 (in Arabic).
GLASER, Kurt, and POSSONY, Stefan. Victims of Politics: The State of Human
Rights. New York, Columbia University Press, 1979, 614 p.
GOLSONG, Heribert. Implementation of international protection of human rights,
Recueil des tours (Hague Academy of International Law), Vol. III, 1963,
pp. 1-151.
GOODE, William J. Family patterns and human rights, Znternational Social
Science Journal (Paris, Unesco), Vol. XVIII, No. 1, 1966, pp. 45-60.
GORMLEY, W. Paul. Human Rights and Environment: The Need for Interna-
tional Co-operation. Leyden, Sijhtoff, 1976, 274 p.
GOTESKY, Rubin, and LASZLO, Ervin. Human dignity. This century and the
next. Gordon and Breach, Science Publishers, 1970, 380 p.
GOTLIEB, Allan (Ed.). Human Rights, Federalism and Minorities, Toronto,
Canadian Institute of International Affairs, 1970, 268 p.
GRAEFRATH, B. Against Cold War-For Promotion of Human Rights, GDR
Committee for Human Rights, Bulletin No.311978 (Berlin), pp. 3-25.
-. A Necessary Dispute on the Contents of the Peoples Right to Self-
Determination: Rejection of an Old Concept in a New Guise, GDR Com-
mittee for Human Rights Bulletin No. l/1981, Berlin, pp. 11-25.
-. On the 6th Version of the Proposal for a High Commissioner for Human
Rights, GDR Committeefor Human Rights, Bulletin No. 411978(Berlin),
pp. 26-42.
-. The Socialist States and International Co-operation in the Field of Human
Rights, GDR Committee for Human Rights, Bulletin No. 211979(Berlin),
pp. 38-53.
GRAHL-MADSEN, Atle. The Status of Refugees in Znternational Law. 2 vol.,
Leyden, Sijthoff, 499 p. + 482 p.
-. Territorial Asylum. Stockholm, 1980, 230 p.
GREEN, L.C. Derogation of Human Rights in Emergency Situations, Cana-
dian Yearbook of International Law, Vol. 16, 1978, pp. 92-115.
GREEN, Reginald. Basic Human Rights/Needs: Some Problems of Categorical
Translation and Unification, The Review of the International Commis-
sion of Jurists (Geneva), No. 27, December 1981, pp. 53-58.
GREENSPAN, Morris. The protection of human rights in time of warfare,
Israel Yearbook on Human Rights (Tel Aviv), Vol. 1, 1971, pp. 228-45.
GROS ESPIELL, Hector, The Evolving Concept of Human Rights-Western,
Socialist and Third World Approaches, in Rights: Thirty Years after the
Universal Declaration, Ramcharan (Ed.), Human Rights, op. cit.
GRUBER, H. Co-operative Movement and Human Rights, GDR Committee
for Human Rights, Bulletin No. 311978 (Berlin), pp. 34-40.
GUILHAUDIS, Jean-Francois. Le droit des peuples a disposer deux-memes.
Grenoble, Presses Universitaires de Grenoble, 1976, 226 p.
GURADZE, H. Der Stand der Menschenrechte im Volkerrecht. Gottingen, 1956.
GUZMAN CARRASCO, M.A. No intervention y protection international de 10s
derechos humanos. Quito (Ecuador) Editorial Universitaria, 1963, 414 p.
HAKKIK, Mohammad al-. Some aspects of democracy in Islamic community
life, Islamic Literature, Vol. XVI, No. 2, 1970, pp. 49-57, Vol. XVI,
No. 3, 1970, pp. 39-48.
HAKSAR, Urmila. Minority protection and international bill of human rights.
Bombay, Allied Publishers, 1974, 181 p.
HAL&Z, Jojsef. Socialist Concept of Human Rights. Budapest, Akademiai
Kiado, 1966, 309 p.
HAMBURGER, Ernest. Droits de lhomme et relations internationales, Recueil
des tours (Hague Academy of International Law), No. 97, 1959, pp. 293-
429.
HANEY, G. Mans Right to Humanity, GDR Committee for Human Rights

Bulletin No.1/1981 (Berlin), pp. 3-10.
HANNIKAINEN, L., Human Rights and Non-Intervention in the Final Act of
the CSCE, GDR Committee for Human Rights Bulletin No.111980 (Ber-
lin), pp. 50-63.
HARTMAN, Joan F. Derogation from Human Rights Treaties in Public Emer-
gencies, Harvard Znternational Law Journal, Vol. 22, 1981, pp. l-52.
HARTUNG, Fritz. Die Entwicklung der Menschen- und Burgemechte von 1776
bis zur Gegenwart. 3 erw. Aufl. Gottingen, Musterschmidt, 1964, 184 p.,
bibliography.
HENKIN, Alice (Ed.). Human Dignity: The Znternationalization of Human
Rights. New York, Aspen InstitutelOceanaSijthoff and Noordhoff, 1979,
203 p.
HENKIN, Louis. The Rights of Man Today. Boulder, Colo., Westview Press,
1978, 173 p.
HERCZDGH, G. Problems of international humanitarian law requiring a solu-
tion, (In Hungarian). Allam-es Jogtudomany (Budapest), Vol. 19, p. 239.
HIGGINS, Rosalyn. Derogations under Human Rights Treaties, British Year-
book of International Law 1976-1977 (London), pp. 281-320.
HIRSZOWICZ, Maria. The Marxist approach to human rights, Znternation-
al Social Science Journal. (Paris, Unesco), Vol. XVIII, No. 1, 1966,
pp. 13-24.
HOLCOMBE, Arthur N. Human Rights in the Modern World. New York, New
York University Press, 1948, 162 p.
HOSKEN, Fran. Womens Human Rights: Towards a Definition, Human Rights
Quarterly, Vol. 3, No. 2, 1981, pp. l-10.
HUBNER, Gallo, and JORGE, Ivan. Panorama de 10s derechos humanos. San-
tiago de Chile, And& Bello, 1973, 268 p., bibliography.
Humanitarian Law and the Protection of Man. Special issue of Annals of Znter-
national Studies (Geneva), Vol. 8, 1977, 171 p.
Human rights in perspective. Papers presented at the Round-table Meeting on
Human Rights, held at Oxford, United Kingdom, from 11 to 19 November
1965. Zntemationul Social Science Journal (Paris, Unesco), Vol. XVIII,
No. 1, 1966, pp. 7-96.
Human Rights: Protection of the Individual under International Law. South
Hackensack, N.J., Rothman, 1970, 286 p.
HUMPHREY, John. The International Law of Human Rights in the Middle
Twentieth Century, in The Present State of International Law and Other
Essays, Maarten Bos (Ed.), (Deventer, Kluwer, 1973), pp. 75-105.
IMBERT, P-H. Reservations and Human Rights Conventions, The Human
Rights Review (London), Vol. 6, No. 1, 1981, pp. 28-60.
IMRAN, Muhammad. Social justice in Islam, Islamic Literature, Vol. XIII,
No. 7, 1967, pp. 5-16.
INSTITUT DETUDES POLITIQUES DAIX. INSTITUTO DE CULTURA
HISPANICA. Las Casas et la politique des droits de lhomme. Publie avec
le contours du Centre national de la recherche scientifique. Aix-en-Provence,
1974, 373 p.
JAKOVLIEVIC, Bosko. New International Status of Civil Defence: As An Zn-
strument for Strengthening the Protection of Human Rights. The Hague,

Martinus Nijhoff, 1981, 146 p.
JENKS, Clarence Wilfred. The common law of mankind. London, Stevens, 1956,
456 p. (The Library of World Affairs, No. 41).
JOBLIN, Joseph. Solidarity, Human Rights and Basic Needs, Labour and
Society (Geneva), Vol. 4, No. 4, 1979, pp. 355-71.
-. Role of Human, Economic and Social Rights in the Advent of a New
Society, Labour and Society (Geneva), Vol. 2, No. 4, 1977, pp. 349-76.
JOJIC, Branislava. Covek v socijulismu. Ustuvne koncepcije prava ooveka i njegove
zustite v evropskim socijulisticskim xemljama (Man in socialism. Basic
concepts and protection of human rights in European socialist countries).
Belgrade, Institut za medunarodni radnicki pokret, 1972,149p., bibliography.
JOYCE, James A. The New Politics of Human Rights. New York, St. Martins
Press, 1979, 305 p.
Jura hominis UCcivis (Collection de IInstitut international des droits de lhomme),
Rend Cassin amicorum discipulorumque liber. I: Problemes de protection
internationale des droits de lhomme (1969). II: Le difficile progres du
regne de la justice et de la paix internationales par le droit (1970). III: La
protection internationale des droits de lhomme dans les rapports entre
personnes privees (1971). IV: Methodologie des droits de lhomme (1972).
JUVIGNY, Pierre. La Declaration universelle des droits de lhomme, Revue de
droit contemporuin (Paris), vol. 15, no 1, 1968, pp. 7-167. Suite darticles.
KADT, Emanuel de. Some Basic Questions on Human Rights and Development,
World Development (London), Vol. 8, 1980, pp. 97-105.
KALSHOVEN, Frits. Reaffirmation and Development of International Human-
itarian Law Applicable in Armed Conflicts: The Diplomatic Conference,
Geneva, 1974-1977, Netherlands Yearbook of Zntemationul Law (The
Hague), Part I appears in Vol. 8, 1977, pp. 107-35 and Part II in Vol. 9,
1978, pp. 107-71.
KAMENKA, E., and TAY, A.E-S (Eds.). Human Rights. New York, St. Mar-
tins Press, 1978, 148 p.
KARTASHKIN, V.A. Mezhdunurodnuyu zushchita prav cheloveka (International
protection of human rights). Mezhdunarodnye otnoshenija, Moscow, 1976.
222 p.
-. Uvazhenyije prav cheloveka i nevmeshatelstvo vo vnutrenniye dela
gosudastv (Respect for human rights and non-interference in domestic
affairs of state). Sovetskoye gosudurstvo i pravo (Moscow), No. 6, 1974, pp.
35-41.
KEITH, K.J. (Ed.). Essays on human rights. N.Z., Sweet and Maxell, 1968.
199 p.
KHADDURI, Majid. Human rights in Islam, Annals of the American Acad-
emy of Political and Social Science (Philadelphia), Vol. 243, 1946, pp.
77-81.
KHALAFFALA, Ahmad Mohammed. The Islamic civilizations position toward
human rights, (In Arabic.) Egyptian review of international law (Cairo),
Vol. 12, 1956, pp. l-27.
KHALIFA, Abdul-Hakim. Fundamental Human Rights. Lahore, Muhammad
Ashrab, 1952.
KHOL, A. Zwischen Stuut und Welstaat. Die internationalen Sicherungsver$ahren

zum Schutxe der Menschenrechte. Vienna, Stuttgart, Braumiiller, 1969,
628 p.
KHUSHALANI, Yougindra. The Dignity and Honour of Woman as Basic and
Fundamental Human Rights. The Hague, Martinus Nijhoff, 1982, 280 p.
Kihontekijinken (Fundamental Human Rights). Prepared by Shakaikagakukenkyujo
(Institute of Social Science). Tokyo University, Tokyo University Press,
196911970,5 vol.
KIN, Tokun. Jinkin: Jiketsuken to Gendui Kokusuiho (Human Rights: The Right
of Self-determination and Modern International Law). Tokyo, Sinyudo Press,
1979, 365 p.
KISS, Alexandre C. La protection internationale du droit de lenfant a leducation,
Revue des droits de 1hommeiHuman rights journal (Paris), vol. VI, no
3-4, 1973, pp. 467-487.
-, and DOMINICK, Mary. The International Legal Significance of the
Human Rights Provisions of the Helsinki Final Act, Vanderbilt Journal
of Transnational Law, Vol. 13, 1980, pp. 293-315.
KLAYMAN, J. Definition of Torture in International Law, Temple Law Quar-
terly, Vol. 51, 1978, pp. 449-517.
KLENNER, H. Human Rights under Materialistic Scrutiny, GDR Committee
for Human Rights, Bulletin No. 411978(Berlin), pp. 3-25.
-. Human Rights, Peaceful Coexistence and International Law in the Pres-
ent Period, GDR Committeefor Human Rights, Bulletin No. 211979 (Ber-
lin), pp. 16-37.
-. Studien iiber die Grundrechte mit Dokumentanhang. Berlin, Staatsverlag
der D.D.R., 1964, 277 p., bibliography.
KOREY, T.W. The key to human rights: implementation, International Con-
ciliation, New York, November 1968, pp. l-70.
KORSHUNOVA, E.N. Diskriminatsijagraxhdan v kapitalisticheskikh strunakh
(Discrimination against citizens in capitalist countries). Moscow, Jurid.
Lit., 1973, 214 p., bibliography.
KOTB, Sayed. Al-adalah al-ijtimVyya fi-I-Islam (Social justice in Islam). Maktabat
Hisr., Cairo, 1945. Translated by John B. Hardie and published by the
American Council of Learned Societies, Washington, D.C., 1953.
KOTHARI, Rajni, Human Rights as a North-South Issue, Bulletin of Peace
KOZIEBRODSKI, Leopold Bolesta. Le droit dusile. Leyden, Sijthoff, 1962,
374 p.
KRAMERS,.J.H. LIslam et la democratic, Anulectu Orientalia, Leyden, 1956,
pp. 168-83(published for the first time in Orientaliu Neerlundica, Leyden,
1948, pp. 223-39).
KUBOTA, Yo. Kanshuhotekitenkai wo miru Kokusai Jinken Hosho (The De-
velopment of International Protection of Human Rights under Customary
Law). The Review of Legal and Political Sciences (Osaka), No. 17, 1981,
pp. 102-15 with a summary in English, pp. 9-10.
KUTNER, L. (Ed.). The human right to individual freedom: a symposium on
world habeas corpus. Coral Gables, Fla., University of Miami Press, 1970,
249 p.
LA CHAPELLE, Philippe de. La declaration universelle des droits de lhomme

et le cutholicisme. Paris, Librairie generale de droit et de jurisprudence,
1967, 490 p.
LADOR-LEDERER, J. Josef. International group protection: aims and methods
in human rights. Leyden, Sijthoff, 1968, 481 p., bibliography.
-. Therole of treaty law in the protection of human rights, Israel Year-
book on Human Rights (Tel Aviv), Vol. 2, 1972, pp. 11-38.
LAUREN, P.G. Human Rights in History, Diplomatic History, Vol. 2, 1978,
pp. 257-78.
LAUTERPACHT, Eli, and COLLIER, J. (Eds.). Individual Rights and the
State in Foreign Affairs. New York, Praeger, 1977, 762 p.
LAUTERPACHT, Hersch. An international bill of the rights of man. New
York, 1945, 230 p.
-. International law and human rights. New York, Praeger, 1950. 475 p.
-. The international protection of human rights, Recueil des tours (Hague
Academy of International Law), Vol. 70, 1947, pp. l-108.
LEE, Luke. Law, Human Rights and Population: A Strategy for Action, Vir-
ginia Journal of International Law, Vol. 12, 1972, pp. 309-25.
LEVIE, Howard S. Protection of War Victims: Protocol 1 to the 1949 Geneva
Conventions, 4 Vol., Dobbs Ferry, N.Y., Oceana, 1979-1981.
LILLICH, Richard. Duties of States regarding the Civil Rights of Aliens,
Recueil des tours, Hague Academy of International Law, 1978, Vol. 161,
No. III, pp. 329-443.
-, and NEWMAN, F.C. Znternutional Human Rights: Problems of Law
and Policy. Boston and Toronto, Little, Brown and Company, 1979,
1030 p.
LIPPMAN, Matthew. The Protection of Universal Human Rights: The Problem
of Torture, Universal Human Rights (New York), Vol. 1, No. 4, 1979,
pp. 25-56.
LITRENTO, Oliveiros Lessa. 0 problema internucional dos direitos humanos.
Rio de Janeiro, Editora Rio, 1973, 149 p., bibliography.
LUARD, David Evan Trent (Ed.). The international protection of human rights.
New York, Praeger, 1967, 384 p.
LUINI DEL RUSSO, Alessandra. Znternutional protection of human rights.
Washington, D.C., Lerner Law Books Co., 1971, 361 p., bibliography.
-. Prisoners Right of Access to the Court: A Comparative Analysis of
Human Rights Jurisprudence in Europe and the United States, Journal
of International Law and Economics, Vol. 13, No. 1, 1978, pp. l-39.
MACDONALD, R.; JOHNSTON, D.; and MORRIS, G. The International Law
and Policy of Human Welfare. Alphen aan den Rijn, Sijthoff and Noordhoff,
1978, 690 p.
MADIOT, Yves. Droits de lhomme et libertes publiques. Paris, Masson, 1976,
298 p.
MAKI, Linda. General Principles of Human Rights Law Recognized by All
Nations; Freedom from Arbitrary Arrest and Detention, California West-
ern Znternational Law Journal, Vol. 10, 1980, pp. 272-313.
MANI, V.S. Regional Approaches to the Implementation of Human Rights,
Indian Journal of International Law, Vol. 21, 1981, pp. 96-118.
MARIE, Jean-Bernard. Glossaire des droits de lhomme: termes fondamentaux

dans les instruments universels et regionaux/Glossary of Human Rights:
Basic Terms in Universal and Regional Instruments. Paris, Editions de
la maison des sciences de lhomme, 1981, 339 p.
-. Les pactes internationaux relatifs aux droits de lhomme confirment-ils
linspiration de la Declaration universelle?, Revue des droits de lhommel
Human rights journal (Paris), vol. III, no 3, 1970, pp. 397-423.
MARITAIN, Jacques. Les droits de lhomme et la loi naturelle. Paris, Hartmann,
1947.
-. The rights of man and natural law. New York, Scribners, 1943, 119 p.
MARKS, Stephen P. La Commission permanente arabe des droits de lhomme,
Revue des droits de IhommelHuman rights journal (Paris), Vol. III, No.
1, 1970, pp. 101-8.
-. Development and human rights: Some reflections on the study of devel-
opment, human rights and peace, Bulletin of Peace Proposals (Oslo), Vol.
8, No. 3, 1977, pp. 236-46.
-. Emerging Human Rights: A New Generation for the 1980s, Rutgers
Law Review, Vol. 33, 1981, pp. 435-52.
-. La notion de periode lexception en mat&-e des droits de lhomme,
Revue des droits de IhommelHuman rightsjournal (Paris), Vol. VIII, No.
4, 1975, pp. 821-58.
-. The Peace/Human Rights/Development Dialectic, Bulletin df Peace Pro-
posals (Oslo), Vol. 11, No. 4, 1980, pp. 339-48.
MARMORSTEIN, Victoria. World Bank Power to Consider Human Rights
Factors in Loan Decisions, The Journal of International Law and Eco-
nomics, Vol. 13, 1978, pp. 113-36.
MASSIGNON, Louis. Le respect de la personne humaine en Islam et la priorite
du droit dasile sur le devoir de juste guerre, Revue internationale de la
Croix-Rouge (Geneva), No. 402, June 1952. Reproduced in Opera Minora,
Vol. III, pp. 537-53.
MAUDOODI, Sayed Abdul Ala. Islam and social justice, Islamic Thought
(Rampur, India), Vol. X, No. 3-4, 1965, pp. 1-17.
MBAYE, Keba. Le droit au developpement comme un droit de lhomme, Revue
des droits de IhommelHuman rightsjournal (Paris), Vol. V, No. 2-3, 1972,
pp. 503-34.
-. Les realites du monde noir et les droits de lhomme, Revue des droits de
1hommelHuman rights journal (Paris), Vol. III, No. 3, 1969, pp. 382-94.
McCAMANT, John. Social Science and Human Rights, International Organi-
zation, Vol. 35, No. 3, 1981, pp. 531-52.
MCCARTHY, Thomas E. The international protection of human rights-ritual
and reality, The International and Comparative Law Quarterly (Lon-
don), Vol. 25, April 1976, p. 261.
-. Transnational Corporations and Human Rights, in Cassese (Ed.), UN
Law/Fundamental Rights: Two Topics in international Law, Alphen aan
den Rijn, Sijthoff and Noordhoff, 1979, pp. 175-96.
McCHESNEY, Alan. Promoting the General Welfare in a Democratic Soci-
ety: Balancing Human Rights and Development, Netherlands Znterna-
tional Law Review, Vol. 27, 1980, pp. 283-334.
McDOUGAL, M.; LASSWELL, H.; and CHEN, L. Human Rights and World
Public Order: Human Rights in Comprehensive Context, Northwestern
University Law Review, Vol. 72, 1977, pp. 227-307.
-. Human Rights and World Public Order. The Basic Policies of an Inter-
national Law of Human Dignity. New Haven and London, Yale Univer-
sity Press, 1980, 1015 p.
-. Human rights for women and world public order: the outlawing of sex-
based discrimination, American Journal of International Law (Washing-
ton, D.C.), Vol. 69, 1975, p. 497.
-. The protection of aliens from discrimination and world public order:
responsibility of states conjoined with human rights, American Journal
of International Law (Washington, D.C.), Vol. 10, July 1976, p. 432.
-. The right to religious freedom and world public order; the emerging
norm of nondiscrimination, Michigan Law Review (Ann Arbor, Mich.),
Vol. 74, April 1976, p. 856.
MERON, THEODOR. A Report on the N.Y.U. Conference on Teaching Inter-
national Protection of Human Rights, New York University Journal of
International Law and Politics, Vol. 13, 1981, pp. 881-957.
MERTENS, Pierre. Le droit de recours effectif devant les instances nationales
en cas de violation dun droit de lhomme. Brussels, Editions de luniversite
de Bruxelles, 1973, 151 p.
-. Les droits de quel homme? Syntheses (Paris-Brussels), No. 273-274,
March-April 1969, pp. 17-27.
-. Limprescriptibilite des crimes de guerre et centre lhumanite. Brussels,
Editions de luniversite de Bruxelles, 1974, 230 p. (Etudes de droit inter-
national et de droit penal compare, no 6).
MESTDAGH, Karel de Vey. The Right to Development, Netherlands Zntema-
tional Law Review, Vol. 28, No. 1, 1981, pp. 30-53; and in Development,
MICHALSKA, Anna. Uniwersalizm i regionalizm w miedzynarodowej ochronie
praw czlowieka (Universalism and regionalism in the international pro-
tection of human rights). Ruth Prawniczy Ekonomiczny i Sociologiczny
(Poznan, Poland), Vol. 36, No. 2, 1974, p. 27.
MIRKINE-GUETZEVITCH, Boris. Quelques problemes de la mise en oeuvre
de la Declaration universelle des droits de lhomme, Recueil des tours
(Hague Academy of International Law), 1954, pp. 255-375.
MODINOS, Polys. Les droits de lhomme dans les &its de Polys Modinos.
Vingt-cinquieme anniversaire de la Convention europeenne des droits de
lhomme, Revue des droits de 1hommelHuman rights journal (Paris),
Vol. VIII, Special issue, 1975.
MONROY CABRA, Marco Gerardo. Los derechos humanos. Temis Libreria,
Bogota, Colombia, 1980, 371 p.
MONTEALEGRE, Hernan. La seguridad de1 estado y derechos humanos. San-
tiago, Chile, Academia de Humanism0 Cristiano, 1979, 800 p.
MOREILLON, Jacques. Le Comite international de la Croix-Rouge et la protec-
tion des detenus politiques. Lausanne, Institut Henry-Dunant, Editions
lAge dhomme, 1973, 295 p.
MORSE, Bradford. Practice, Norms and Reform of International Humanitarian
--
Rescue Operations, Recueil des cows, Hague Academy of International

Law, Vol. 157, No. IV, 1977, pp. 121-94.
MOSKOWITZ, Moses. Human rights and world order; The struggle for human
rights in the United Nations. Dobbs Ferry, N.Y., Oceana, 1958, 239 p.
-. International concern with human rights. Leyden, Sijthoff, 1974, 239 p.
-. The politics and dynamics of human rights. Dobbs Ferry, N.Y., Oceana,
1968, 283 p.
MOVCHAN, Anatolij P. Mezhdunarodnaya zashchita prav cheloveka (Interna-
tional Protection of human rights). Moscow, Jur. Lit., 1958, 167 p.
MOZOKHINA, Aleksandra Gavrilovna. Svoboda lichnosti i osovnye prava grazhdan
v sotsialisticheskikh stranakh Evropy (Personal freedom and fundamental
rights of citizens in the socialist countries of Europe). Moscow, Nauka,
1965, 294 p., bibliography.
MURPHY, J. Objections to Western Conceptions of Human Rights, Hofstra
Law Review, Vol. 9, 1981, pp. 433-74.
MUSHKAT. The Development of International Humanitarian Law and the Law
of Human Rights, German Yearbook of International Law (Berlin), Vol.
21, 1978, pp. 150-68.
NANDA, V.; and BASSIOUNI, C. Slavery and Slave Trade: Steps towards its
Eradication, Santa Clara Law Review, Vol. 12, 1972, pp. 424-42.
NAWAS, M.K. The concept of human rights in Islamic law, Howard Law
Journal (Washington, D.C.), Vol. 11, 1965, pp. 325-32.
-. The Ratification of or Accession to Human Rights Conventions, Indian
Journal of International Law, Vol. 13, 1973, pp. 576-88.
NDIAYE, B. De lindividu et de sa collaboration avec les organismes internationaux
de protection des droits de lhomme, 1974.Annales africaines (Dakar),
1975, p. 25.
NEWMAN, Frank C. Natural justice, due process and the new international
covenants on human rights, Public Law (London), Winter 1967.
NICKEL, James W., Is There a Human Right to Employment?, The Philo-
sophical Forum, Vol. X, No. 2-4, 1979, pp. 149-70.
NOTRE DAME, Ind. University. Law School. Center for Civil Rights. Znterna-
tional human rights: a bibliography 1965-1969.William Miller (Ed.). Notre
Dame, The Law School, 1976, 125 p.
-. Center for Civil Rights. International human rights: a bibliography
2970-1976. William Miller (Dir. Publ.). Notre Dame, The Law School,
1976, 118 p.
NWABUEZE, B.O. Constitutionalism in the emergent states. C. Hurst and Co.
(publishers) Ltd. in association with Nwamife Publishers Ltd., 1973,316 p.
ODONNELL, Daniel. States of Exception, Review of the International Com-
mission of Jurists (Geneva), No. 21, 1978, pp. 52-60.
OGRADY, Ron. Bread and Freedom: Understanding and Acting on Human
Rights. Geneva, World Council of Churches, 1979, 81 p.
OKOLIE, C.C. International Law Perspectives of the Developing Countries. The
Relationship of Law and Economic Development to Basic Human Rights.
New York, London, Lagos, NOK Publishers, 1978, 369 p.
OMAHONY, Patrick J. Multinationals and Human Rights. Essex, Mayhew-
McCrimmon, 1980, 318 p.
OPSAHL, Torkel. Human Rights Today: International Obligations and National

Implementation, Scandinavian Studies in Law (Copenhagen), 1979, pp.
151-76.
OSTROROG, Comte Leon. Les droits de lhomme et lIslam (communication a
1Academiediplomatique internationale). Revue de droit international (Paris),
1930, p. 100 et seq.
OWEN, David. Human Rights. London, Cape, 1978.
PAUL, James. Law, Socialism and the Human Right to Development in Third
World Countries, Review of Socialist Law, Vol. 7, No. 3, 1981, pp. 235-42.
PASARA, Luis. Human Rights and Development: A Difficult Relationship, in
Development, Human Rights and the Rule of Law, op. cit., .pp. 181-86.
PECES-BARBA, G. Derechosfundamentales. I. Teoriageneral. Madrid, Biblioteca
universitaria guardiana, 1973, 349 p.
PETERFI, W. The Missing Human Rights: The Right to Peace, Peace Re-
search, Vol. 11, 1979, pp. 19-25.
POLLIS, A,, and SCHWAB, P. (Eds.).Human Rights: Cultural and Ideological
Perspectives. New York, Praeger, 1979, 165 p.
POPESCU, Tudor R. The significance of the Universal Declaration of Human
Rights, Two decades after its adoption, Revue roumaine detudes inter-
nationales (Bucarest), No. 3-4, 1968, pp. 111-24.
POPPE, E. The Right to Education-Reality for All in a Socialist Society,
GDR Committeefor Human Rights, Bulletin No. 111979(Berlin), pp. 9-21.
PRONK, Jan. Human Rights and Development Aid, International Commission
of Jurists, The Review (Geneva), No. 18, 1977, pp. 33-39.
PRZETACZNIK, Franciszek. Lattitude des Etats socialistes a legard de la
protection internationale des droits de lhomme, Revue des droits de
lhommeltiuman rights journal (Paris), vol. VIII, no 1, 1974, pp. 175-206.
RAAFAT, W. International Law and Human Rights, Revue Egyptienne de
Droit International (Cairo), Vol. 33, 1977, pp. 13-66 (Text in Arabic).
RABBATH, E. Le theorie des droits de lhomme dans le droit musulman,
Revue internationale de droit compare (Paris), Vol. 4, 1959, pp. l-22.
RAMCHARAN, B.G. Human Rights: Thirty Years after the Universal Declara-
tion. The Hague, Nijhoff, 1979, 274 p.
-. Standard Setting: Future Perspectives, in Ramcharan (Ed.), Human
Rights, op. cit.
-. The Role of Regional, National and Local Institutions: Future Perspec-
tives, in Ramcharan (Ed.), Human Rights, op. cit.
-. Implementing the International Covenants on Human Rights, in
Ramcharan (Ed.). Human Rights, op. cit.
-. Equity in the International Law of Human Rights, Dalhousie Law
Journal, Vol. 5, 1979, pp. 45-72.
RAMELLA, Pablo A. Los derechos humanos. Buenos Aires, Ediciones Depalma,
1980, 340 p.
RAMPHAL, Shridath. Development and the Rule of Law, in Development,
REARDON, Betty A. Human rights and educational reform, Bulletin of Peace
RECHETOV, Youri. Responsibility for Violations of Human Rights, Revue des
droits de 1hommelHuman rights journal (Paris), Vol. 12, 1969, pp.

83-94.
The Recommendations from the Arusha Conference on the African Refugee Prob-
lem. Uppsala, Scandinavian Institute of African Studies, 1981 45 p.
REYNOLDS, Paul Davidson. On the protection of human subjects and social
sciences, International Social Science Journal (Paris, Unesco), Vol. XXIV,
No. 4, 1972, pp. 739-69.
RIVERO, Jean. Les droits de lhomme, categoric juridique?, Perspectivas del
Derecho Public0 (Madrid), Vol. 3, 1969, p. 21 et seq.
ROBERTSON, A.H. Human rights in Europe. 2nd edition. Manchester Univer-
sity Press, 1977, 392 p.
-. Human rights in the world. Manchester University Press, 1972, 280 p.
-. Human Rights in National and Znternational Law, Dobbs Ferry, N.Y.,
Oceana, 1968, 412 p.
RODLEY, N.S. Monitoring Human Rights by the UN System and Non-
Governmental Organizations, in D. Dommers and G. Loescher (Eds.),
Human Rights and American Foreign Policy, Notre Dame, London, Uni-
versity of Notre Dame Press, 1979, pp. 157-78.
RGLING, B.V.A. Human rights and the war problem, Netherlands interna-
tional law review (Leyden), Vol. 15, 1968, p. 346.
RONEN, Dov. The Quest for Self-Determination. New Haven, Yale University
Press, 1979, 144 p.
ROSENBAUM, A. (Ed.). The Philosophy of Human Rights: International
Perspectives. Westport, Ct., Greenwood Press, 1980, 288 p.
ROSENBLAD, Esbjorn, International Humanitarian Law of Armed Conflict:
Some Aspects of the Principle of Distinction and Related Problems. Ge-
neva, Henry-Dunant Institute, 1979, 200 p.
ROZO ACUNA, Eduardo. Travectoria de 10s derechos humanos. Bogota,
Universidad externado de Colombia, 1973, 2 vol.
RUIZ-GIMENEZ, J. Vatican II et les droits de lhomme, Revue des droits de
1hommelHuman rights journal (Paris), vol. II, no 1, 1969, pp. 41-94.
SAID, Abdul Aziz (Ed.). Human Rights and World Order. New Brunswick,
N.J., Transaction Books, 1978, 170 p.
-. Precept and Practice of Human Rights in Islam, Universal Human
Rights (New York), Vol. 1, No. 1, 1979, pp. 63-79.
SALZBERG, John, and YOUNG, Donald D. The parliamentary role in imple-
menting international human rights: a U.S. example, Texas International
Law Journal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp. 251-78.
SANCHEZ DE LA TORRE. Teoriay experienciade 10s derechos humanos. Ma-
drid, 1968, 183 p.
SANDOZ, Yves. La place des Protocoles Additionnels aux Conventions de Ge-
n&e du 12 aoiit 1949 dans le droit humanitaire, Revue des droits de
1hommelHuman rights journal (Paris), Vol. XII, No. l-2, 1979, pp.
135-62.
SCHERMERS, H.G. Judicial Protection of International Rights, German Year-
book of International Law, Vol. 23, 1980, pp. 181-95.
SCHINDLER, Dietrich, and TOMAN, Jiri. The Laws of Armed Conflicts, 2nd
ed., Alphen aan den Rijn, Sijthoff and Noordhoff, 1981, 900 p.
SCHREUER, Christoph. The impact of international institutions on the protec-

tion of human rights in domestic courts, Israel Yearbook on Human
Rights (Tel Aviv), Vol. 4, 1974, pp. 60-88.
SCHWEISFURTH, Theodor. Operations to Rescue Nationals in Third States
Involving the Use of Force in relation to Protection of Human Rights,
German Yearbook of International Law, Vol. 23, 1980, pp. 159-80.
SCHWELB, Egon. Civil and political rights: The international measures of
implementation, American Journal of International Law (Washington,
D. C.), Vol. 62, pp. 827-68.
-. Human rights and the international community. The roots and growth of
the Universal Declaration of Human Rights, 194.8-1963. Chicago, 1964,
96 p.
-. Human Rights and the Teaching of International Law, American Jour-
nal of International Law, Vol. 64, 1970, pp. 355-64.
-. The influence of the Universal Declaration of Human Rights on interna-
tional and national law. New York, 1959.
-. International conventions on human rights, International Comparative
Law Quarterly (London), Vol. 9, October 1960, pp. 654-75.
-. The law of treaties and human rights, in Toward World Order and
Human Dignity, pp. 262-90. New York, The Free Press, 1976.
Seminario international sobre 10s derechos de1 hombre, Universidad National
Autonoma de Mexico, 1968. Veinte arias de evolucidn de 10s derechos
humanos: seminario international patrocinado por la Secretaria de
Relaciones Exteriores de Mexico y la Comision Interamericana de Derechos
Humanos. 1 ed. Mexico, UNAM, Instituto de Investigaciones Juridicas,
1974, 603 p.
SHACHOR-LANDAU, C. Protection of fundamental rights and sources of law
in European Community jurisprudence, Journal of World Trade Law
(Twickenham, Middlesex, U.K.), Vol. 10, May/June 1976, pp. 289-300.
SHELTON, Dinah. Human rights within churches: a survey concerning discrim-
ination within religious organizations, Revue des droits de lhommelhluman
rights journal (Paris), Vol. VI, No. 3-4, 1973, pp. 487-563.
SHIMANE, Robert. International Human Rights: A Selected Bibliography, Los
Angeles, University of Southern California Law Center, 1979, 81 p.
SINHA, S.P. Asylum and international law. The Hague, 1971, 366 p.
SKJELSBACK, Kjell. Human rights and peace research, Bulletin of Peace
SOHN, Louis, and BUERGENTHAL, Thomas. International protection of human
rights. Indianapolis, Ind., Bobbs-Merrill, 1973, 1,402 p. (republished in
two bound volumes: 1. The United Nations as protector of human rights;
2. Regional conventions on protection of human rights).
SPERDUTI, G. Lindividu et le droit international, Recueil des tours (Hague
Academy of International Law), Vol. II, 1956, pp. 729-839.
Spezialbibliographie iiber die in der Deutschen Demokratischen Republik zu
Problemen der Menschenrechte und der verjassungsmassigen Grundrechte
erschienene Literatur (Auswahl), Zeitraum 19451975. GDR Academy of
Science for State and Law, Potsdam, 1975, 196 p.
SRNSKA, M. Socialisticke mezinarodnepravni principy a normy a ochrana lidskych
prav (Socialist principles and norms of international law and protection of

humanrights). Pravnik (Ljubljana, Yugoslavia), Vol. 115,1976, pp. 94-106.
-. Comparisons Between Universal and Regional Human Rights Conven-
tions, GDR Committee for Human Rights Bulletin No. 111980 (Berlin),
pp. 40-49.
STONE, Julius. Human Law and Human Justice. Stanford, Calif., Stanford
University Press, 1965, 415 p., bibliography.
STREETEN, Paul. Basic Needs and Human Rights, World Development, Vol.
8, 1980, pp. 107-11.
SUZUKI, Eisuke, A States Provisional Competence to Protect Human Rights
in a Foreign State, Texas International Law Journal, Vol. 15, 1980, pp.
231-60.
SWARUP, Jagadish. Human rights and fundamental freedoms. Bombay, Tripathi,
1975, 408 p., bibliography.
Symposium on human rights in health, London, 1973. Human rights in health,
Amsterdam, Associated Scientific Publishers, 1974,304 p. (CIBA Founda-
tion Symposium 23, New Series).
Symposium on the Future of Human Rights in the World Legal Order, Hofstra
Law Review, Vol. 9, 1981, pp. 337-592.
Symposium on the international law of human rights. Howard University, Wash-
ington, D.C., 1965. Howard Law Journal (Washington, D.C.), Vol. 2, No.
2, 1965.
SZABO, Imre. La portee juridique de la Declaration universelle. Revue de droit
contemporain (Brussels), no 1, 1968, p. 39, et seq.
-. Remarques sur le developpement du catalogue international des droits
de lhomme, Ren6 Cassin amicorum discipulorumque liber I, Paris, 1969,
pp. 347-61.
-. Cultural rights. Budapest, Akademiai Kiado, 1974, 116 p.
-. Socialist concept of human rights, in fundamental questions concerning
the theory and history of citizens. Budapest, 1966.
TAKANO, Yuichi. Kokusaishakai ni okeru Jinken (Human Rights in Interna-
tional Society). Tokyo, Iwanami Press, 1977, 405 p.
TARDU, Maxime. Coexistence des procedures universelles et regionales de
plaintes individuelles dans le domaine des droits de lhomme, Revue des
droits de 1hommelHuman rights journal (Paris), vol. IV, no 2-3, 1971, pp.
614-20.
-. Human Rights: The International Petition System, A Repertoire of Prac-
tice. Dobbs Ferry, N.Y., Oceana, 1980-82, 3 vol.
THAMBYAHPILLAI, G. The Right to Individual Property and the Problems of
Agrarian Reform, International Social Science Journal (Paris, Unesco),
Vol. XVIII, 1966, No. 1, p. 77.
THAPAR, Romila. The Hindu and Buddhist traditions, International Social
Science Journal (Paris, Unesco), Vol. XVIII, No. 1, pp. 34-44.
THOMPSON, Kenneth W., The Moral Imperatives of Human Rights: A World
Sumey. Washington, D.C., University Press of America, 1980, 254 p.
TIRUCHELVAM, Neelan. The Legal Needs of the Poor: Towards an Alterna-
tive Model of Group Advocacy, in Development, Human Rights and the
Rule of Law, op. cit., pp. 199-206.
TRIKAMDAS, P. Asian court of human rights, in SINGHIVI, L.M. (Ed.),

Horizons of freedom. Delhi, Institute of Constitutional and Parliamentary
Studies, 1969, pp. 106-10.
TRIVEDI, R.N. Human Rights, Right to Development and the New Interna-
tional Economic Order-Perspectives and Proposals, in Development,
TYAGI, Yogesh. Third World Response to Human Rights, Indian Journal of
International Law, Vol. 21, 1981, pp. 119-40.
VALLAT, F. (Ed.). An introduction to the study of human rights, based on a
series of lectures delivered at Kings College, London, in the Autumn of
1970, London, 1972, 127 p.
VALTICOS, Nicolas. Universalite des droits de lhomme et diversite des condi-
tions nationales, Rend Cassin amicorum discipulorumque liber I, Paris,
1969, pp. 383-403.
VAN DER VYVER, Johan David. Die Beskerming van menseregte in Suid-
Afrika. Juta en kie. Beperk, 1975, 211 p.
-. Seven lectures on human rights. Wynberg, South Africa, Juta, 1976,182p.
VAN DYKE, Vernon, The Cultural Rights of Peoples, Universal Human Rights.
Vol. 2, No. 2, 1980, pp. 1-21.
-. Human rights, the United States and world community. New York,
Oxford University Press, 1970, 292 p.
VASAK, Karel. Lapplication des droits de lhomme et des libertes fondamentales
par les juridictions nationales, in Droit communautaire et droit national,
Bruges, 1965, pp. 335-50.
-. Les conseils de presse, Revue des droits de 1hommelHuman rights
journal (Paris), vol. VII, no 2-4, 1974, pp. 617-23.
-. Les droits de lhomme et lAfrique, Revue belge de droit international
(Brussels), Vol. 3, 1967, pp. 459-78.
-. Le droit international des droits de lhomme, Recueil des tours (Hague
Academy of International Law), Vol. IV, 1974, pp. 335-415.
-. Ego&me et droits de lhomme: esquisse pour un pro&s, in Melanges
Modinos, Paris, 1968, pp. 356-68.
-. The European Convention on human rights beyond the frontiers of
Europe, The International and Comparative Law Quarterly (London),
October 1963, pp. 1206-31.
-. Les institutions nationales, regionales et universelles pour la promotion
et la protection des droits de lhomme, Revue des droits de 1hommelHuman
rights journal (Paris), vol. I, no 2, 1968, pp. 164-79.
-. Les problenies specifiques de la mise en oeuvre des droits economiques
et sociaux de lhomme, Universite de Louvain, 1974, in Vers une protec-
tion efficace des droits economiques et sociaux, pp. 11-34.
-. Was bedeutet die Aussago, ein Staatsvertrag sei self-executing?,
Juritische Blatter (Vienna), No. 24, December 1961, pp. 621-23.
VELU, J. Les effets directs des instruments internationaux en mat&-e de droits
de lhomme, Revue belge de droit international (Brussels) Vol. 15, 1980,
pp. 293-316.
VERDOODT, Albert. Naissance et signification de la Declaration universelle
des droits de lhomme. Louvain-Paris, 1964.
-. La protection des droits de lhomme dans les Etats plurilingues. Brus-

sels, Editions Labor, Paris, Fernand Nathan, 1973, 210 p.
VERWEY, Wil D., The Establishment of a New International Economic Order
and the Realisation of the Right to Development and Welfare: A Legal
Survey, Indian Journal of International Law, Vol. 21, 1981, pp. l-78.
VEUTHEY, Michel. Guerilla et droit humanitaire. Geneva, Institut Henry-Du-
nant, 1976, 432 p.
VIERDAG, E.W. The concept of discrimination in international law. With spe-
cial reference to human rights. The Hague, Nijhoff, 1973, 176 p.
WALKER, Dorothy Jean, Statelessness: Violation or Conduit for Violation of
Human Rights, Human Rights Quarterly, Vol. 3, No. 1, 1981.
WALTER SANCHEZ G. (Ed.). Derechos Humanos y Relaciones Znternacionales,
Santiago de Chile, 1979, Instituto de Estudios Internacionales de la
Universidad de Chile and Instituto Chileno de Estudios Humanisticos,
240 p.
WEIS, Paul. Legal Aspects of the Convention of 25 July 1951 relating to the
Status of Refugees, British Yearbook of International Law, Vol. 30, 1953,
pp. 478-89.
-. The International Protection of Refugees, American Journal of Inter-
national Law, Vol. 48, 1954, pp. 193-201.
-. The 1967 Protocol relating to the Status of Refugees and Some Ques-
tions of the Law of Treaties, British Yearbook of International Law, Vol.
44, 1967, pp. 39-70.
-. Nationality and Statelessness in International Law, 2nd ed., Alphen aan
den Rijn, Sijthoff and Noordhoff, 1979, 337 p.
-. Recent developments in the law of territorial asylum, Revue des droits
de 1hommelHuman rightsjournal (Paris), Vol. I, No. 3, 1968, pp. 378-96.
WIJNGAERT, Christine van Den. The Political Offence Exception to Extradi-
tion. Deventer, Kluwer, 1980, 263 p.
WIRSING, Robert (Ed.). Protection ofEthnic Minorities. New York, Pergamon,
1981, 375 p.
WISEBERG, Laurie, and SCOBLE, Harry. Bibliography of Womens Human
Rights Publications, Human Rights Quarterly, Vol. 3, No. 2, 1981.
World Population Control: Rights and Restrictions. Edited by the Staff of Co-
lumbia Human Rights Law Review. New York, Family Service Associa-
tion of America, 1975.
YOUNG-ANAWATY, Amy. Human Rights and the ACP-EEC Lome II Con-
vention: Business as Usual at the EEC, New York University Journal of
Znterriational Law and Politics, Vol. 13, No. 1, 1980, pp. 63-100.
ZIRS, S. Human Rights: Continuing the Discussion. Moscow, Progress Pub-
lishers, 1980, 187 p.
ZORIN, V. International Cooperation in the Sphere of Human Rights, Interna,-
tional Affairs (Moscow), Vol. 9, 1979, pp. 57-63.
B. References Relating to International and Regional Organizations
1. United Nations
ABRAM, J. The United Nations and Human Rights, Foreign Affairs, Vol. 47,
1969, pp. 361-74.
ALSTON, Philip. The United Nations Specialized Agencies and Implementa-

tion of the International Covenant on Economic, Social and Cultural Rights,
Columbia Journal of Transnational Law (New York), Vol. 18, No. 1,
1979, pp. 79-118.
Asociacion Costarricense Pro-Naciones Unidas. La Declaration Universal de
Derechos Humanos. San Jose, Editorial Juricentro, 216 p.
BOSSUYT, Marc. Le reglement interieur du Comite des droits de lhomme,
Revue belge de droit international (Brussels), Vol. XIV, 1978-1979, pp.
104-56.
BOVEN, T.C. Van. The United Nations and Human Rights: A Critical Ap-
praisal, Bulletin of Peace Proposals (Oslo), Vol. 8, No. 3, 1977;pp. 198-208.
-. The United Nations Commission on human rights and violations of human
rights and fundamental freedoms, Nederlands tijdschrifi voor internationoal
recht (Leyden), Vol. 15, No. 4, 1968, pp. 374-93.
-. United Nations Policies and Strategies: Global Perspectives?, in
Ramcharan (Ed.), Human Rights, op. cit.
BRUCE, Margaret K. Work of the UN relating to the status of women, Revue
des droits de 1hommelHuman rights journal (Paris), Vol. IV, No. 2-3,
1971, pp. 365-412.
BUERGENTHAL, Thomas. Implementing the racial convention, Texas Znter-
national Law Journal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp. 187-221.
-. To Respect and to Ensure: State Obligations and Permissible Obliga-
tions, in Henkin (Ed.), The International Bill of Rights, op. cit., pp.
72-91.
-. United Nations and the development of rules relating to human rights,
American Society for International Law Proceedings (Washington, D. C.),
Vol. 59, 1965, p. 132.
CAPOTORTI, Francesco. The international measures of implementation included
in the Covenants on Human Rights, in EIDE and SHOU, Proceedings of
the Seventh Nobel Symposium (Oslo, September 2527, 1967), Stockholm,
1968, pp. 132-48.
-. I diritti dei membri di minoranze: verso una dichiarazione delle Na-
zioni Unite, Rivista di diritto internazionale (Rome), Vol. 64, 1981, pp.
30-42.
CAREY, John. United Nations Response to Government Oppression, Znterna-
tional Lawyer, Vol. 3, 1968, pp. 102-8.
--. United Nations scrutiny of South African prisons, Revue des droits de
1hommelHuman rights journal (Paris), Vol. I, No. 4, 1968, pp. 531-43.
-. UN protection of civil and political rights. New York, 1970, 205 p.
CASSESE, Antonio. The admissibility of communications to the UN on human
rights violations, Revue des droits de 1hommelHuman rights journal
(Paris), Vol. V, No. 2-3, 1972, pp. 375-97.
-. 11 sistema di garanzia della Convenzione dellONU sulleliminazione di
ogni forma di discriminazione razziale, Rivista di diritto internaxionale
(Milan), 1967, pp. 270-336.
-. The Self-Determination of Peoples, in Henkin (Ed., The International
Bill of Rights, op. cit., pp. 92-113.
-. (Ed.). UN LawlFundamental Rights: Two Topics in International Law,
Alphen aan den Rijn, Sijthoff and Noordhoff, 1979, 258 p.
CASSIN, Rene. La Commission des droits de lhomme d IONU, 194i-1971,

Miscellanea W.J. Ganshof van der Meersch, Vol. I, 1972, pp. 397-433.
CHAKRAVARTI, Raghubir. Human Rights and the United Nations. Calcutta,
Progressive Publishers, 1958, 218 p.
CLARK, Roger S. A United Nations High Commissioner for Human Rights.
The Hague, Nijhoff, 1972, 186 p.
-. The United Nations and Religious Freedom, New York University
Journal of International Law and Politics, Vol. 11, 1978, pp. 197-225.
COHEN, R. International Covenant on Civil and Political Rights, Znterna-
tional problems (Tel Aviv), October 1968, pp. 38-49.
COLEMAN, Howard David. The problem of anti-Semitism under the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimina-
tion, Revue des droits de IhommelHuman rights journal (Paris), Vol. II,
No. 4, 1969, pp. 609-31.
COMMISSION TO STUDY THE ORGANIZATION OF PEACE. The United
Nations and Human Rights. Dobbs Ferry, N.Y., Oceana, 1968, 239 p.
DAS, Kamleshwar. Measures of implementation of the International Convention
on the Elimination of All Forms of Racial Discrimination with special ref-
erence to the provisions concerning reports from States parties to the
Convention, Revue des droits de 1hommelHuman rights journal (Paris),
Vol. IV, No. 2-3, 1971, pp. 213-62.
DECAUX, Emmanuel. La mise en vigueur du Pacte international relatif aux
droits civils et politiques, Revue g&&ale de droit international public
(Paris), Vol. 84, No. 2, 1980, pp. 487-534.
DECLEVA, M. Lelezione de1Comitato dei diritti delluomo Rivista di Diritto
Znternazionale (Rome), Vol. 64, 1981, pp. 249-69.
DINSTEIN, Y. The Right to Life, Physical Integrity and Liberty, in Henkin
(Ed.), The International Bill of Rights, op. cit., pp. 114-37.
DONNELLY, Jack. Recent Trends in UN Human Rights Activity: Description
and Polemic, International Organisation, Vol. 35, 1981, pp. 633-55.
ELLES, D.L. Aliens and activities of the UN in the field of human rights,
Revue des droits de IhommelHuman rights journal (Paris), Vol. VII, No.
2-4, 1974, pp. 291-320.
ERMACORA, F. Human Rights and Domestic Jurisdiction: Art. 2, Sec. 7 of the
United Nations Charter, Recueil des tours (Hague Academy of Interna-
tional Law), Vol. 124, 1968, pp. 371-451.
GALEY, Margaret. Promoting Nondiscrimination against Women: The UN Com-
mission on the Status of Women, International Studies Quarterly (Bev-
erly Hills Calif.), Vol. 23, 1979, pp. 273-302.
GONZALES, Theresa. The Political Sources of Procedural Debates in the United
Nations; Structural Impediments to Implementation of Human Rights,
New York University Journal of International Law and Politics, Vol. 13,
1981, pp. 427-72.
GRAEFRATH, Bernhard. Die Vereinten Nationen und die Menschenrechte.
Berlin, Deutscher Zentralverlag, 1956, 171 p.
-. Trends Emerging in the Practice of the Human Rights Committee,
GDR Committee for Human Rights Bulletin No. 111980 (Berlin), pp.
3-23.
GRAVEN, Jean. Les crimes centre lhumanite sont imprescriptibles. Le signifi-

cation et la portee de la decision de 1Assemblee generale des Nations
Unies du 26 novembre 1968, Revue des droits de 1hommelHuman rights
journal (Paris), vol. II, no 1, 1969, pp. 20-40.
GREEN, James Frederick. Changing approaches to human rights; the United
Nations, 1954and 1974, Texas International Law Journal (Austin, Tex.),
Vol. 12, No. 2-3, 1977, pp. 223-38.
GUGGENHEIM, Malvina H. The implementation of human rights by the UN
Commissioner on the status of women: a brief comment, Texas Interna-
tional Law Journal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp. 239-49.
-. Key provisions of the new United Nations rules dealing-with human
rights petitions, New York University Journal of International Law and
Politics (New York), Vol. 6, 1973, pp. 427-54.
GURADZE, Heinz. Are human rights resolutions of the UN General Assembly
law-making?, Revue des droits de 1hommelHuman rights journal (Paris),
Vol. IV, No. 2-3, 1971, pp, 453-62.
-. Die Menschenrechtskonventionen der Vereinten Nationen vom 16
Dezember 1966, German Yearbook of International Law, Vol. 15, 1971,
pp. 242-73.
HALDERMAN, J. Advancing Human Rights through the United Nations,
Law an.d Contem,porary Problems, Vol. 43, 1979, pp. 275-88.
HANNUM, Hurst. Thirty-third Session of the UN Sub-Commission on Preven-
tion of Discrimination and Protection of Minorities, Human Rights Quar-
terly, Vol. 3, No. 1, 1981.
HENKIN, Louis (Ed.). The International Bill of Rights: The Covenant of Civil
and Political Righ.ts. New York, Columbia University Press, 1981, 523 p.
-. The United Nations and Human Rights, International Organization,
Vol. 19, 1965, pp. 504-17.
HEVENER, N.K., and MOSHER, S.A. General Principles of Law and the UN
Covenant on Civil and Political Rights, Znternational and Comparative
Law Quarterly (London), Vol. 27, No. 3, 1978, pp. 596-614.
HOLBORN, L.W. Refugees, a problem of our time: the work of the U,nited
Nations High Commissioner for Refugees, 1951-l%% Metuchen, N.J.,
Scarecrow Press, 1975, 2 vol.
HUMPHREY, John. The right of petition in the United Nations, Revue des
droits de lhommeltiuman rights journal (Paris), Vol. IV, No. 2-3, 1971,
pp. 463-75.
-. The United Nations Commission on Human Rights and its parent body,
Rene Cassin amicorum discipulorumque liber I, Paris, 1969, pp. 108-13.
-. The United Nations Sub-Commission on the Prevention of Discrimina-
tion and the Protection of Minorities, American Journal oflntemational
Law (Washington, D.C.), Vol. 62, pp. 869-88.
-. The Universal Declaration of Human Rights: Its History, Impact and
Judicial Character, in Ramcharan (Ed.), Human Rights, op. cit.
International Committee of the Red Cross. Annual Report. Geneva, issued an-
nually, 1980 Report (Geneva), 1981, 110 p.
JAGERSKIOLD, Stig. The Freedom of Movement, in Henkin (Ed.), The Zn-
ternational Bill of Rights, op. cit., pp. 166-84.
JENKS, C. Wilfred. The United Nations Covenants on Human Rights come to

life, in Recueil detudes de droit international en hommage a Paul
Guggenheim, Geneva, 1968, pp. 765-73.
KISS, A.C. Permissible Limitations on Rights, in Henkin (Ed.), The Interna-
tional Bill of Rights, op. cit., pp. 290-310.
KRAMER, David, and WEISSBRODT, David. The 1980 UN Commission on
Human Rights and the Disappeared, Human Rights Quarterly, Vol. 3,
No. 1, 1981.
KULIKOW, I.P., Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities--Tasks and Results, GDR Committeefor Human Rights
Bulletin No.111980 (Berlin), pp. 33-39.
LALIGNANT, M. Le projet de convention des Nations Unies sur Ielimination
de toutes les formes dintolerance religieuse, Revue belge de droit interna-
tional (Brussels), vol. 5, no 1, 1969, pp. 175-206.
LANDERER, Lily E. Capital punishment as a human rights issue before the
UN, Revue des droits de IhommelHuman rights journal (Paris), Vol. IV,
No. 2-3, 1971, pp. 511-34.
LERNER, Natan. Anti-Semitism as racial and religious discrimination under
United Nations conventions, Israel Yearbook on Human Rights (Tel Aviv),
Vol. I, 1971, pp. 103-15.
-. The UN Convention on the Elimination of All Forms of Racial Discrim-
ination. The Hague, Martinus Nijhoff, 1980, 278 p.
LILLICH, R.B. (Ed.). Humanitarian intervention and the United Nations.
Charlottesville, Va., University Press of Virginia, 1973, 240 p.
-. The United Nations and human rights complaints, American Journal
of International Law (Washington, D.C.), Vol. 64, July 1970, pp. 610-14.
-, and NEFF, S.C. The Treatment of Aliens and International Human
Rights Norms: Overlooked Developments at the U.N., German Yearbook
of International Law (Berlin, FRG), Vol. 21, 1978, pp. 97-118.
LIPPMAN, M. Human Rights Revisited: The Protection of Human Rights under
the International Covenant on Civil and Political Rights, Netherlands
International Law Review, Vol. XXVI, 1979, No. 3, pp. 221-76.
MACCHESNEY, B. International Protection of Human Rights in the United
Nations, Northwestern University LawReview, Vol. 47,1952, pp. 198-222.
MANSUY, Gerard. Un mediateur des Nations Unies pour les droits de lhomme?,
Revue des droits de 1hommelHuman rights journal (Paris), vol. VI, no 2,
1973, pp. 235-59.
MARIE, Jean-Bernard. La Commission des droits de lhomme de IONU. Paris,
Pedone, 1975, 352 p.
-. La Commission des droits de lhomme des Nations Unies a sa vingt-
neuvieme session, Revue des droits de IhommelHuman rights journal
(Paris), vol. VI, no 2, 1973, pp. 369-433.
-. La pratique de la Commission des droits de lhomme de 1O.N.U. en
matiere de violation des droits de lhomme, Revue belge de droit intema-
tional (Brussels), Vol. 15, 1980, pp. 355-80.
McDOUGAL, Myers S., and BEBR, Gerhard. Human rights in the United
Nations, American Journal of International Law (Washington, D.C.),
Vol. 58, 1964, pp. 603-41.
MICHALSKA, Anna. Podstawowe prawa czlowieka w systemie Organizacji Narodo

Zjednoczonych, (The situation of human rights in the United Nations
system). Prawa i obowiazki obywatelskie w Polsce i swiecie (Warsaw),
1974, pp. 394-435.
MILLER, Robert. United Nations Fact-Finding Missions in the Field of Human
Rights:, Australian Yearbook of International Law 1970-1973 (Melbourne),
1976, p. 40.
MIYAZAKI, Shigeki et al. Kokusai Jinken Kiyaku (The International Cove-
nants on Human Rights). Hogaku Seminar (Tokyo), 1979, 287 p.
MILLER, Jakob. Petitioning the United Nations, Universal Human Rights
(New York), Vol. 1, No. 4, 1979, pp. 57-72.
MUSE, Erik, and OPSAHL, Torkel. The Optional Protocol to the International
Covenant on Civil and Political Rights, Santa Clara Law Review (Santa
Clara), Vol. 21, 1981.
NEAL, M. The United Nations and human rights. International conciliation
(New York), No. 489, 1953.
NEWMAN, Frank C. Interpreting the human rights clauses of the UN Char-
ter, Revue des droits de 1hommelHuman rights journal (Paris), Vol. V,
No. 2-3, 1972, pp. 283-91.
NJENGA, N. The Role of the United Nations in the Matter of Racial Discrimi-
nation, East African Law Review, Vol. 1, 1968, pp. 136-57.
NOOR MUHAMMAD, Haji N. Due Process of Law for Persons Accused of
Crime, in Henkin (Ed.), The International Bill of Rights, op. cit., pp.
138-65.
NOWAK, Manfred. The Effectiveness of the International Covenant on Civil
and Political Rights-Stocktaking after the First Eleven Sessions of the
UN Human Rights Committee, Human Rights Law Journal (Kehl am
Rhein), Vol. 1, 1980, pp. 136-70.
OSTROVSKIY, Y.A. OON i prava cheloveka (The United Nations and human
rights). Moscow, Isdatelstvo mezhdunarodniye otnosheniya, 1968, 190 p.
PARTSCH, Karl Josef. Elimination of Racial Discrimination in the Enjoyment
of Civil and Political Rights. A Study of Article 5, subparagraphs (a)-(d) of
the International Convention on the Elimination of All Forms of Racial
Discrimination, Texas International Law Journal, Vol. 14, 1979,pp. 191-250.
-. Freedom of Conscience and Expression, and Political Freedoms, in
Henkin (Ed.), The International Bill of Rights, op. cit., pp. 209-45.
PECHOTA, Vratislav. The Development of the Covenant on Civil and Political
Rights, in Henkin (Ed.), The International Bill of Rights, op. cit., pp.
32-71.
PETRENKO, V. The Human Rights Provisions of the United Nations Charter,
Manitoba Law Journal, Vol. 9, 1978, pp. 53-92.
PREMONT, Daniel. United Nations Procedures for the Protection of All Persons
Subjected to Any Form of Detention or Imprisonment, Santa Clara Law
Review (Santa Clara), Vol. 20, 1980, pp. 603-32.
RAMCHARAN, B.G. The Emerging Jurisprudence of the Human Rights Com-
mittee, Dalhousie Law Journal, Vol. 6, No. 1, 1980, pp. 7-40.
-. Equality and Nondiscrimination, in Henkin (Ed.), The International
Bill of Rights, op. cit., pp. 246-69.
REANDA, Laura. Human Rights and Womens Rights: The United Nations
Approach, Human Rights Quarterly, Vol. 3, No. 2, 1981, pp. 11-31.
RESICH, Zbigniew. La Commission des droits de lhomme des Nations Unies,
Revue de droit contemporain (Brussels), no 1, 1968, pp. 25-37.
-. Effectiveness of human rights defense in the UN Organization. (In Pol-
ish). Nowe Prawo (Warsaw), Vol. 30, March 1974, pp. 247-62.
RIGO, Sureda A. The evolution of the right of self-determination. A study of UN
practice. Leyden, Sijthoff, 1973, 397 p.
ROBERTSON, A.H. The Implementation System: International Measures, in
Henkin (Ed.), The International Bill of Rights, op. cit., pp. 332-70.
ROBINSON, N. The Genocide Convention: A Commentary. New York, Insti-
tute of Jewish Affairs, 1960, 158 p.
-. The Universal Declaration of Human Rights: Its Origin, Significance,
Application and Interpretation. New York, Institute of Jewish Affairs,
1958, 173 p.
SAITO, Yasuhiko. Kokuren no 1503 Tsuho Tetsuzuki ni tsuite (The United
Nations 1503 Communications Procedure). Hor-itsujiho (Tokyo), Vol. 53.
No. 12, 1981, pp. 85-91.
SCHACHTER, Oscar. The Obligation of the Parties to Give Effect to the Cove-
nant on Civil and Political Rights, American Journal of International
Law (Washington, D.C.), Vol. 73, 1979, pp. 462-65.
-. The Obligation to Implement the Covenant in Domestic Law, in Henkin
(Ed.), The International Bill of Rights, op. cit., pp. 311-31.
SCHREIBER, Marc. La pratique recente des Nations Unies dans le domaine de
la protection des droits de lhomme, Recueil des tours (Hague Academy of
International Law), Vol. II, 1976, p. 297 et seq.
-. Les Nations Unies et les droits de lhomme, Revue des droits de
IhommeiHuman rights journal (Paris), vol. II, no 1, 1969, pp. 95-112.
-. Les organisations non-gouvernementales et loeuvre des Nations Unies
dans le domaine de la protection des droits de lhomme, Syntheses (Dordrecht,
Netherlands), 25 June 1970, pp. 58-63.
SCHWELB, Egon. Complaints by individuals to the Commission of Human
Rights: twenty-five years of uphill struggle (1947-1971), in C. Boasson
and N. Nurock (Eds.), The changing international community, The Hague,
Mouton, 1973.
-. The International Convention on the Elimination of All Forms of Racial
Discrimination, The International and Comparative Law Quarterly (Lon-
don), October 1966, p. 996 et seq.
-. The International Court of Justice and the human rights clauses of the
Charter, American Journal of International Law (Washington, D.C.),
Vol. 66, 1972, p. 337.
-. The international measures of implementation of the International Cov-
enant on Civil and Political Rights and of the Optional Protocol, Texas
International Law Journal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp.
141-86.
-. The nature of the obligations of the States parties to the International
Covenant on Civil and Political Rights, in Rent? Cassin amicorum
discipulorumque liber I, Paris, 1969, pp. 301-24.
-. Notes on the early legislative history of the measures of implementation

of the human rights covenants, Melanges Modinos, Paris, 1968, pp. 270-89.
-. Some aspects of the international covenants on human rights of Decem-
ber 1966, Proceedings of the Seventh Nobel Symposium (Oslo, September
25-27, 1967), Stockholm, 1968, pp. 103-29.
-. Som,e aspects of the measures of implementation of the International
Covenant on Economic, Social and Cultural Rights, Revue des droits de
1hommelHuman rights journal (Paris), Vol. I, No. 3, 1968, pp. 363-77.
SHIBAHARA, Kuniji. Kokusairengo to Hikokinsha no Jinkenhosho (The United
Nations and the Human Rights Protection of Detained Persons), Jurist
(Tokyo), Vol. 681, 1979, pp. 27-33.
SKOLER, D.L. World implementation of the United Nation,s Standard Mini-
mum Rules for Treatment of Prisoners. Washington, D. C., American Bar
Association Commission on Correctional Facilities and Services, 1975, 44
P*
SMOGER, Gerson. Whither the Commission on Human Rights: A Report after
the Thirty-Fifth Session, Vanderbilt Journal of Transnational Law, Vol.
12, 1979, pp. 943-68.
SOHN, Louis B. A Short History of United Nations Documents on Human
Rights, in Commission to Study the Organization of Peace, The United
Nations and Human Rights: 18th Report of the Commission, Dobbs Ferry,
N.Y., Oceana, 1968.
-. The human rights law of the Charter, Texas International Law Jour-
nal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp. 129-40.
-. The Improvement of the UN Machinery on Human Rights, Znterna-
tional Studies Quarterly (Beverly Hills, Calif.), Vol. 23, 1979, pp. 273-302.
-. The Rights of Minorities, in Henkin (Ed.), The International Bill of
Rights, op. cit., pp. 27089.
-. The United Nations, The next twenty-five years. Twentieth report of
the Commission to study the organisation of peace. New York, 1969.
SZABO, Imre. The United Nations Human Rights Covenants, Problem of ratifica-
tion and implementation, American Society of International Law Pro-
ceedings (Washington, D.C.), Vol. 62, 1968, pp. 83-123.
TABANDAHI, Sultan Husayn. A Muslim commentary on the Universal Decla-
ration of Human Rights. (Translated from the Persian,) Guildford, God-
ding, 1970, 96 p.
TARDU, M., UN Response to Gross Violations of Human Rights: The 1503
Procedure, Santa Clara Law Review (Santa Clara), Vol. 20, 1980, pp.
559-602.
TINKER, Catherine. Human Rights for Women: The UN Convention on the
Elimination of All Forms of Discrimination against Women, Human Rights
Quarterly, Vol. 3, No. 2, 1981.
TRINDADE, A. Exhaustion of Local Remedies Under the UN Covenant on
Civil and Political Rights and its Optional Protocol, International and
Comparative Law Quarterly, Vol. 28, 1979, pp. 734-65.
VIERDAG, E.W. The Legal Nature of the Rights Granted by the International
Covenant on Economic, Social and Cultural Rights, Netherlands Yeur-
book of International Law (The Hague), Vol. 9, 1978, pp. 69-105.
VINCENT-DAVISS, Diana, Human Rights Law: A Research Guide to the

Literature-Part I: International Law and the United Nations, New York
University Journal of International Law and Politics, Vol. 14, No. 1,
1981, pp. 209-320.
VOLIO, Fernando. Legal Personality, Privacy and the Family, in Henkin (Ed.),
The International Bill of Rights, op. cit., pp. 185-208.
2. International Labour Organisation
BARTOLOMEI DE LA CRUZ, H.G. Protection against anti-union discrimina-
tion, 1976, 123 p.
CAIRE, G. Freedom of association and economic development, 1977, 159 p.
ERSTLING, J.E. The right to organise: a survey of laws and regulations relat-
ing to the rights of workers to establish unions of their own choosing, 1977,
82 p.
HAAS, Ernest B. Human rights and international action: The case offreedom of
association. Stanford, Calif., Stanford University Press, 1970, 184 p.
JENKS, Clarence Wilfred. Human rights and the international labour stan-
da,rds. New York, Praeger, 1960, 159 p.
-. The international protection of freedom of association for trade union
purposes, Recueil des tours (Hague Academy of International Law), Vol.
I, 1955.
-. The International protection of trade union freedom. London, Stevens,
1957, 592 p.
-. La Organizacion international de1 trabajo y la proteccidn de 10s derechos
hu.manos de America. Buenos Aires, Universidad National de Buenos
Aires, 1962, 93 p.
-. Social justice in the law of nations: the IL0 impact after fifty years.
London, New York, issued under the auspices of the Royal Institute of
International Affairs by Oxford University Press, 1970,94 p., bibliography.
JOYCE, James Avery. World Labour Rights and their Protection. Croom Helm,
London, 1980, 190 p.
LANDY, E.A. The effectiveness of international supervision: three decades of
IL0 experience. Dobbs Ferry, N.Y., Oceana, 1966, 268 p.
-. The influence of international labour standards: Possibilities and per-
formance, International Labour Review, June 1970, pp. 555-604.
LEARY, Virginia. International Labour Conventions and National Law. The
Hague, Martinus Nijhoff, 1981, 214 p.
POTOBSKY, G. von. Protection of trade union rights: Twenty years work by
the Committee on Freedom of Association, International Labour Review,
January 1972, pp. 69-83.
POULANTZAS, N.M. International protection of human rights: implementa-
tion procedures within the framework of the ILO, Revue hellenique de
droit international (Athens), Vol. 25, 1972, pp. 110-41.
ROSSILION, C. IL0 examination of human rights situations, The review of the
International Commission of Jurists (Geneva), No. 12, June 1974, pp.
40-49.
SAMSON, K.T. The changing pattern of IL0 supervision, International Labour
Review, September-October 1979, pp. 569-87.
-. The International Labour Organisation and human rights in 1970, Revue

des droits de IhommelHuman rights journal (Paris), Vol. IV, No. 1, 1971,
pp. 103-17.
VALTICOS, Nicolas. Le droit international du travail. Paris, Dalloz, 1970. 638
p. et supplement 1973.
-. Fifty years of standard-setting activities by the International Labour
Organisation, International Labour Review, September 1969, pp. 201-37.
-. The future prospects for international labour standards, International
Labour Review, November-December 1979, pp. 679-97.
-. Les normes de lorganisation internationale du travail en matiere de
protection des droits de lhomme. Revue des droits de IhommelHuman
rights journal (Paris), vol. IV, no 4, 1971, pp. 691-771.
-. The Role of the ILO: Future Perspectives, in Ramcharan (Ed.), Human
Rights, op. cit.
WOLF, Francis. Aspects judiciaires de la protection internationale des droits de
lhomme par lOIT. Revue des droits de 1hommelHuman rights journal
(Paris), vol. IV, no 4, 1971, pp. 773-838.
-. IL0 experience in the implementation of human rights. Journal of Znter-
national Law and Economics (Washington, D.C.), Vol. 10,August-September
1975, pp. 599-625.
3. United Nations Educational, Scientific and Cultural Organization

ALSTON, Philip. Unescos Procedure for Dealing with Human Rights Viola-
tions, Santa Clara Law Review (Santa Clara), Vol. 20, 1980, pp. 665-96.
BASTID, S. Une nouvelle commission de conciliation?, in Melanges offerts CL
Henri Rollin, Paris, Pedone, 1964, p. 1.
HEINTZE, H.J. On the Unesco Declaration on Race and Racial Prejudice,
GDR CommitteeforHuman Rights BulletinNo. 111981, (Berlin), pp. 26-41.
LERNER, Natan. New Concepts in the Unesco Declaration on Race and Racial
Prejudice, Human Rights Quarterly, Vol. 3, No. 1, 1981.
LEWIS, Sulwyn. The principles of cultural co-operation. Paris, Unesco, 1971.
29 p. (Reports and papers on mass communication, No. 61).
MARKS, Stephen. Unesco and Human Rights: The Implementation of Rights
Relating to Education, Science, Culture and Communication, Texas Zn-
ternational Law Journal, Vol. 13, No. 1, 1977, p. 35.
MERTENS, P. Lapplication de la Convention et de la Recommandation de
1Unesco concernant la lutte centre la discrimination dans le domaine de
lenseignement: un bilan provisoire, Revue des droits de IhommelHuman
rights journal (Paris), vol. I, no 1, 1968, pp. 91-108.
NARTOWSKI, Andrzej S. The Unesco system of protection of the right to
education, Polish Yearbook of International Law (Wroclaw), Vol. 6, 1974,
pp. 289-309.
SABA, Hanna. La Convention et la Recommendation concernant la lutte centre
la discrimination dans le domaine de lenseignement, Annuaire frun&s
de droit international (Paris), vol. 6, pp. 646-59.
-. Human rights, in In the minds of men. Unesco, 1946-1971, Paris,
Unesco, 1972, pp. 251-69.
4. Food and Agriculture Organization of the United Nations

CHRISTENSEN, Cheryl. The Right to Food: How to Guarantee. World Order
Models Project, Working Paper No. 6, 1978, New York, 40 p.
COLLINS, Joseph. The Right to Food and The New International Economic
Order. Paper presented to Unesco Expert Meeting on Human Rights,
Human Needs, and the Establishment of a New International Economic
Order, Paris, 1978, Unesco dot. SS-78iCONF.63016, 33 p.
DOBBERT, J.P. Right to Food, in The Right to Health as a Human Right,
R.J. Dupuy (Ed.), Hague Academy of International Law/United Nations
University, Alphen aan den Rijn, Sijthoff and Noordhoff, 1979,pp. 184213.
The Right to be Free from Hunger: A Struggle for Self-reliance. International
Youth and Student Movement for the United Nations, Geneva, 1978,30 p.
5. Council of Europe
ANTONOPOULOS, Nicholas. La jurisprudence des organes de la Convention
europeenne des droits de lhomme. Leyden, Sijthoff, 1967, 262 p.
Arbeitskreis fur Unwoltrecht (Bonn). Le droit a un environnement humain:
proposition pour un protocole additionnel a la Convention europbenne des
droits de lhomme. (The right to a human environment/Das recht auf eine
menschenwurdige Umwelt). By the working group for the right to envi-
ronment (Bonn). Berlin, Schmidt, 1973, 58 p.
BUERGENTHAL, Thomas. Domestic status of the European Convention on
Human Rights: a second look, Journal of the International Commission
of Jurists (Geneva), Vol. 7, Summer 1966, pp. 55-96.
-. Effect of the European Convention on Human Rights on the internal law
of Member States, The International and Comparative Law Quarterly
(London), Supp. publ., No. 11, 1965, pp. 79-106.
CANCADO TRINDADE, A.A. Exhaustion of Local Remedies in the Travaux
preparatoires of the European Convention on Human Rights, Revue de
droit international, 1980, No. 2, pp. 73-88.
CAPOTORTI, Francesco. Sulleventuale adesionedella Comunita alla Convenzione
europea dei diritti delluomo, Rivista di Diritto Znternazionale (Rome),
Vol. 63, 1980, pp. 5-28.
CASTBERG, Frede. The European Convention on Human Rights. Dobbs Ferry,
N.Y., Oceana, 1974, 198 p.
Les clauses facultatives de la Convention europeenne des droits de lhomme.
Bari, Levante, 1974, 324 p.
COUNCIL OF EUROPE. Bibliography Relating to the European Convention of
Human Rights. Strasbourg, 1978, 4th. ed., 173 p.
DANELIUS, Hans. Conditions of admissibility in the jurisprudence of the Eu-
ropean Commission of Human Rights, Revue des droits de IhommelHuman
rights journal (Paris), Vol. II, No. 2, 1969, pp. 284-336.
DAUBIE, Christian. La Convention europeenne des droits de lhomme et la
raison detat, Revue des droits de 1hommelHuman rights journal (Paris),
vol. III, no 2, pp. 247-75.
DIJK, P. van, and HOOF G.J.H. van. De Europese Conventie in theotie en
praktjjk, Ars Aequi Libri, Utrecht, 1979, 452 p.
DRZEMCZEWSKI, Andrew. The Sui Generis Nature of the European Conven-

tion on Human Rights, The International and Comparative Law Quar-
terly (London), Vol. 29, Pt. 1, 1980, pp. 54-63.
EISSEN, M.A. La Cour europCenne des droits de lhomme, Annuairefranqais
de droit international (Paris), Vol. 5, 1959, pp. 618-58.
ERCMAN, S. European Convention on Human Rights: Guide to Case Law.
Vienna, Wilhelm Braumuller, 1981, 528 p.
The European Convention on Human Rights. London, British Institute of Inter-
national and Comparative Law, 1965, 106 p.
FAWCETT, J.E.S. The application of the European Convention on Human
Rights. Oxford, Clarendon Press, 1969, 368 p.
FROWEIN, Jochen A. The European and the American Conventions on Human
Rights: A Comparison, Human Rights Law Journal (Kehl am Rhein),
Vol. 1, 1980, pp. 44-65.
GANSHOF VAN DER MEERSCH, Walter. Reliance, in the Case-law of the
European Court of Human Rights, on the Domestic Law of States, Human
Rights Law Journal (Kehl am Rhein), Vol. 1, 1980, pp. 13-35.
-. La reference au droit interne des Etats contractants dans la jurispru-
dence de la Cour europeenne des droits de lhomme, Revue internationale
de droit compare (Paris) 198012,pp. 317-37.
GAUTER, Hans Gerhard. Die Sprmchpraxis der europ&ische?t Kommissionfiir
Menschenrechte auf dem Gebiet des Strafvollzuges. Bonn, Ludwig Rohrscheid
Verlag, 1974, 190 p.
GOLSONG, Heribert. Control machinery of the European Convention on Human
Rights, The International and Comparative Law Quarterly (London),
Supp. publ., No. 11, 1965, pp. 38-69.
-. Das Rechtsschutzsystem der Europaischen Menschenrechtskonvention.
Karlsruhe, C.F. Mueller, 1958, 115 p.
GURADZE, Heinz. Die Europaische Menschenrechtskonvention. Berlin, Vahlen,
1968, 276 p.
HELGESEN, Jan E. Access to Courts: Studies of Article 6(l) of the European
Convention from the Perspective of the Sources of Public International
Law. (In Norwegian.) Institutt for Statsrett og Folkerett Universiteti
Oslo, 1975, 200 p.
HIGGINS, Rosalyn. The Execution of the Decisions of Organs under the Euro-
pean Convention on Human Rights, Revue Hellenique de Droit Znterna-
tional (Athens), Vol. 31, No. l-4, 1978, pp. l-39.
JACOBS, Francis G. The European Convention on Human Rights. Oxford,
Clarendon Press, 1975, 286 p.
-. The Extension of the European Convention on Human Rights to Include
Economic, Social and Cultural Rights, Human Rights Review (London),
Vol. 3, 1978, pp. 166-78.
KRUGER, Hans Christian. The European Commission of Human Rights, Human
MIKAELSEN, Laurids. European Protection of Human Rights: The Practice
and Procedure of the European Commission on HuwLan Rights on the
Admissibility of Applications from Individuals and States. The Hague,
Martinus Nijhoff, 1980, 280 p.
Modinos, Polys. Coexistence de la Convention europeenne des droits de lhomme

et du Pacte des droits civils et politiques des Nations Unies, Revue des
droits de IhommelHuman rights journal (Paris), vol. I, no 1, 1968, pp.
41-69.
MONCONDUIT, Francois. La Commission europeenne des droits de lhomme.
Leyden, Sijthoff, 1965, 559 p.
MORRISSON, Clovis. The Dynamics of Development in the European Human
Rights Convention System. The Hague, Martinus Nijhoff, 1981, 192 p.
MOWER, A. Glenn. The Implementation of Human Rights through European
Community Institutions, Universal Human Rights, Vol. 2, No. 2, 1980,
pp. 43-59.
NEDJATI, Zaim. Human Rights under the European Convention. Amsterdam,
North Holland Publishing Co., 1978, 298 p.
OBOYLE, Michael. Practice and Procedure under the European Convention on
Human Rights, Santa Clara Law Review, Vol. 20, 1980, pp. 697-732.
OHIGGINS, Paul, The Closed Shop and the European Convention on Human
Rights, The Human Rights Review (London), Vol. 6, No. 1, 1981, pp.
22-27.
OPSAHL, Torkel. The Protection of Human Rights in the Council of Europe and
in the United Nations, European Yearbook (The Hague), Vol. 26, 1980,
pp. 92-118.
PARTSCH, Karl Josef. Die Rechte und Freiheiten der Europaischen Menschen-
rechtskonvention. Berlin, Duncker Humbolt, 1966, 263 p.
PEUKERT, Wolfgang, Protection of Ownership under Article 1 of the First
Protocol to the European Convention on Human Rights Human Rights
Law Journal (Kehl am Rhein), Vol. 2, 1981, pp. 37-78.
Privacy and human rights. Reports and communications presented at the Third
International Colloquy on the European Convention on Human Rights,
Brussels, 30 September-3 October 1970. Edited by A.H. Robertson. Man-
chester, Manchester University Press, 1973.
ROBERTSON, A.H. (Ed.). Human Rights in National and International Law.
New York, 1968, proceedings of the Second International Conference on
the European Convention on Human Rights, Vienna, 1965. Proceedings
also published in French and German.
SARUP, R. Torture under the European Convention on Human Rights, Amer-
ican Journal of International Law (Washington, D.C.), Vol. 73, 1979, pp.
267-76.
SCHERMERS, H. The Communities under the European Convention on Human
Rights, Legal Issues of European Integration, 1978/l, p. 1.
SCHWELB, Egon. The abuse of the right to petition, Revue des droits de
IhommelHuman rights journal (Paris), Vol. III, No. 2, 1970, pp. 313-32.
SWART, A.H.J. The Legal Status of Aliens: Clauses in Council of Europe
Instruments relating to the Rights of Aliens, Netherlands Yearbook of
International Law (The Hague), Vol. XI, 1980, pp. 3-65.
TEUGEN, Piere-Hem-i. The Temporal Effect of the Judgments of the European
Court of Human Rights and the Court of Justice of the European Commu-
nities, Human Rights Law Journal (Kehl am Rhein) Vol. 1, 1980,
pp. 36-45.
TRECHSEL, S. Die Europaische Menschenrechtskonvention, ihr Schutz der

personlichen Freiheit und die schweixerischen Strafprozessrechte. Berne,
1974.
-. The Right to Liberty and Security of the Person: Article 5 of the Euro-
pean Convention on Human Rights in the Strasbourg Case-law, Human
VASAK, Karel. Commission et Cour europeennes des droits de lhomme, in
Jurisclasseur de droit international, fascicule 155. Paris, Editions tech-
niques, 1961; nouvelle edition, 1969.
-. La Convention europeenne des droits de lhomme (prix Henri Texier;
couronne par IAcademie des sciences morales et politiques, 1966). Paris,
Librairie generale de droit et de jurisprudence, 1964, 327 p.
-. La Convention europeenne des droits de lhomme, complement utile des
Conventions de Geneve, Revue internationale de la Croix-Rouge (Ge-
neva), August 1965 (English and French).
-. De la Convention europeenne a la Convention africaine des droits de
lhomme, Revue juridique et politique doutre-mer (Paris), no 1, 1962, p.
59.
-. The European Convention on human rights beyond the frontiers of
Europe, The International and Comparative Quarterly (London), Vol.
12, 1963, pp. 1206-31.
WALDOCK, Humphrey. The Effectiveness of the System set up by the Euro-
pean Convention on Human Rights, Human Rights Law Journal (Kehl
am Rhein), Vol. 1, 1980, pp. 1-12.
WEIL, Gordon L. The European Convention on Human Rights: background,
development and prospects. Leyden, Sijthoff, 1963, 260 p.
WILLIAMS, Anne M. The European Convention on Human Rights: a new
use?, Texas International Law Journal (Austin, Tex.), Vol. 12, No. 2-3,
1977, pp. 279-92.
ZANGHI, C. La liberte dexpression dans la Convention europeenne des droits
de lhomme et dans le Pacte des Nations Unies relatif aux droits civils et
politiques, Revue g&n&ale de droit international public, Vol. 74, 1970,
pp. 573-89.
ZELLICH, Graham (Ed.). European Human Rights Reports. London European
Law Centre Limited, issued annually.
6. Organization of American States

ABRANCHES, C.A: Dunshee. La competencia actual de la Comision Inter-
americana de derechos humanos y el requisito de1agotamiento de 10srecursos
internos, Revista de derechos humanos (San Juan, Puerto Rico), Vol. IV,
No. 2-3, 1974.
BUERGENTHAL, Thomas. The American Convention of Human Rights: an
illusion of progress, Miscellanea W.J. Ganshof van der Meersch, Vol. 1,
Brussels, Bruylant, 1972, pp. 385-96, 3 vol.
-. The revised OAS charter and the protection of human rights, American
Journal of Znternational Law (Washington, D.C.), Vol. 69, 1975, pp.
828-36.
CABRANES, Jose A. Human rights and non-intervention in the inter-American

system, Michigan Law Review (Ann Arbor, Mich.), Vol. 65, April 1967,
pp. 1146-82.
-. The protection of human rights by the Organization of American States,
American Journal of International Law (Washington, D.C.), Vol. 62, No.
4, 1965, pp. 889-908.
CAMARCO, Pedro Pablo. The American Convention on Human Rights, Revue
des droits de lhommelfluman rights journal (Paris), Vol. III, No. 2, 1970,
pp. 333-56.
CHUECA SANCHO, Angel G. Los derechoshumanos protegidos en la Convencion
americana de San Jose de 1969, Revista espanola de derecho international,
Vol. 32, 1980, pp. 33-79.
FOX, Donald T. The American Convention on Human Rights and prospects for
United States ratification, Human Rights (Chicago), Vol. 3, No. 2, 1973,
pp. 243-81.
GROS ESPIELL, Hector. Le systhme interamericaine comme regime regional
de protection internationale des droits de lhomme, Recueil des tours
(Hague Academy of International Law), Vol. II, 1976.
JIMENEZ DE ARACHAGA, Justino. La conveneion americana de derechos
humanos y las posibilidades de su ratification por 10sEstados americanos,
Revista de derechos humanos (San Juan, Puerto Rico), Vol. IV, No. 2-3,
1974.
LEBLANC, L.J. The OAS and the Promotion and Protection ofHuman Rights.
The Hague, Martinus Nijhoff, 1977, 180 p.
NORRIS, Robert. Bringing Individual Petitions Before the Inter-American
Commission, Santa Clara Law Review, Vol. 20, 1980, pp. 733-72.
-7 and RETTON, Paula Desio. The Suspension of Guarantees: A Compara-
tive Analysis of the American Convention of Human Rights and the Con-
stitutions of the States Parties, The American University Law Review,
Vol. 30, 1980, pp. 189-223.
SANDEFER, Durward V. Human rights in the inter-American system, How-
ard L,aw Journal (Washington, D.C.), Vol. 11, No. 2, 1965, pp. 508-
28.
SCHEMAN, L. Ronald. The Inter-American Commission on Human Rights,
American Journal of lntevnational Law (Washington, D.C.), Vol. 59, No.
2, pp. 335-44.
SCHLEIFER, Nancy. Territorial Asylum in the Americas: Practical Considera-
tions for Relocation, Lawyer of the Americas, Vol. 12, 1980, pp. 359-
80.
SCHREIBER, Anna P. The Inter-American Commission on Human Rights.
Leyden, Sijthoff, 1970, 187 p.
THOMAS, A.V.W., and THOMAS, A.J. Human rights and the Organization of
American States, Santa Clara Lawyer (Santa Clara, Calif.), Vol. 12,
1972, p. 319.
URIBE VARGAS, Diego. Los derechos humanos y el sistema interamericano.
Madrid, Ediciones Cultura Hispanica, 1972, 359 p.
VASAK, Karel. La Commission interamericaine des droits de lhomme. Paris,
Librairie g&k-ale de droit et de jurisprudence, 1968, 287 p.
-. La protection internationale des droits de lhomme sur le continent

americain, OsterreichischeZeitschrzftftir offentliches Recht (Vienna), Vol.
XVII, 1967, pp. 113-22.
7. Non-Governmental Organizations
ARCHER, A. Action by Unofficial Organizations on Human Rights, in The
International Protection of Human Rights, E. Luard (Ed.), New York,
Praeger, 1967, pp. 160-82.
BAMBA, Nobuya. Kokusai Jinken Mondai to NGO (International Human Rights
Problems and NGO, Gendai Kokusai Kankeiron (Modern International
Relations), Tokyo, Tokyo University Press, 1980, pp. 251-74.
BISSELL, Thomas St. G. The International Committee of the Red Cross and
the protection of human rights, Revue des droits de 1hommeiHuman
rights journal (Paris), Vol. I, No. 2, 1968, pp. 255-74.
CASSESE, Antonio. How Could Nongovernmental Organizations Use U.N.
Bodies More Effectively?, Universal Human Rights (New York), Vol. 1,
No. 4, 1979, pp. 73-80.
-. Progressive Transnational Promotion of Human Rights by Non-
Governmental Organizations, in Ramcharan (Ed.), Human Rights, op. cit.
CHIANG, P.L. Non-Governmental Organizations at the U.N. New York, Praeger,
1981, 260 p.
Conference of non-governmental organizations on human rights. International
labour review (Geneva), Vol. 9, June 1968, pp. 585-87.
GREEN, J. NGOs, in Human Rights and World Order, A. Said (Ed.), New
Brunswick, N.J., Transaction, 1978, pp. 90-99.
LARSEN, E. A Flame in Barbed Wire: The Story of Amnesty International.
New York, Norton, 1979, 152 p.
LEARY, Virginia. The Right of the Individual to Know and Act upon His
Rights and Duties: Monitoring Groups and the Helsinki Final Act, Van-
derbilt Journal of Transnational Law, Vol. 13, 1980, pp. 375-95.
NANDA, V; SCARRITT, J.; and SHEPHERD, G. Global Human Rights: Pub-
lic Policies, Comparative Measures, and NGO Strategies. Boulder, Colo.,
Westview Press, 1981, 318 p.
PECHOTA, Vratislav. East European Perceptions of the Helsinki Final Act and
the Role of Citizen Initiatives, Vanderbilt Journal of Transnational Law,
Vol. 13, 1980, pp. 467-500.
POWER, Jonathan. Against Oblivion: Amnesty Internationals Fightfor Human
Rights. London, Fontana, 1981, 254 p.
PRASAD, N. The Role of Non-Governmental Organizations in the New United
Nations Procedures for Human Rights Complaints, Denver Journal of
International Law and Politics, Vol. 5, 1975, pp. 441-62.
SCOBLE, Harry, and WISEBERG, Laurie. Amnesty International: evaluating
effectiveness in the human rights arena. There is a compelling need for
protective associations to monitor governmental repression, Zntellect (New
York), September/October 1976, p. 79.
-. Human rights NGOs: Notes towards comparative analysis, Revue des
droits de IhommelHuman rights journal (Paris), Vol. IX, No. 4, 1976, pp.
611-44.
-. Human Rights and Amnesty International, Annals of the American

Academy of Political and Social Science, No. 413, 1974, pp. 11-26.
SHESTACK, J. Sisyphus Endures: The International Human Rights NGO,
New York University Law School Law Review, Vol. 74, 1978, pp. 89-123.
WEISSBRODT, David. The role of international non-governmental organiza-
tions in the implementation of human rights, Texas International Law
Journal (Austin, Tex.), Vol. 12, No. 2-3, 1977, pp. 292-320.
WISEBERG, L., and SCOBLE, H. The International League for Human Rights:
The Strategy of a Human Rights NGO, Georgia Journal of Znternational
and Comparative Law, Vol. 7, 1977, pp. 289-313.
-. Monitoring Human Rights Violations: The Role of Non-governmental
Organizations, in D. Kommers and G. Loescher (Eds.), Human Rights
and American Foreign Policy, Notre Dame, London, University of Notre
Dame Press, 1979, pp. 179-210.
-. Recent Trends in the Expanding Universe of Nongovernmental Organi-
zations Dedicated to the Protection of Human Rights, Denver Journal of
International Law and Policy, Vol. 8, special issue, 1979, pp. 627-58.
Index of International
Instruments
CONVENTIONS Protocol 1, 196, 198, 427, 443, 444,

445
Arab States, League of Protocol 2, 199, 200, 427, 444
Human Rights and Fundamental Protocols, 105, 194, 227
Freedoms, Draft Covenant, 575, Slavery Convention, 31, 182, 354, 355
580 Protocol, 146, 354
Labour Standards Convention, 113
Social Security Standards Convention, International Labour Organisation
113 Convention concerning the Abolition of
Forced Labour (no. 105), 99, 147,
Council of Europe, Convention on the 189, 378, 389, 657
Non-Applicability of Statutory Convention concerning Forced or
Limitations to War Crimes, 144 Compulsory Labour (no. 29), 147,
186, 189, 365, 378, 657
European Convention for the Protection of Discrimination in Respect of Employ-
Human Rights and Fundamental ment and Occupation, Convention
Freedoms (Rome Convention), 10, (no. ill), 88, 94, 100, 115, 117, 131,
32, 37, 48, 51, 53, 87, 90, 140, 141, 365, 378, 389
143, 147, 149, 150, 155, 156, 157, Employee Injury Benefits Convention
161, 162, 187, 189, 190, 219, 220, (no. 121), 120
224, 225, 226, 227, 413, 453, 454, Employment Policy Convention (no.
455, 457, 458-536, 539, 542, 556, 122), 100, 115, 390
557, 558, 562, 583, 654, 663, 665, equal remuneration for men and women
673, 676, 677 workers for work of equal value,
Protocol 1, 142, 147, 158, 458, 459, 112, 146
558 Equality of Treatment (Social Security)
Protocol 2, 458, 514, Convention (no. 118), 131
Protocol 3, 458, 472 Forty-Hour Week Convention (no. 47),
Protocol 4, 142, 458, 459, 514 117
Protocol 5, 458, 461, 514 Freedom of Association and Protection
of the Right to Organise,
Geneva Conventions Convention (no. 87), 99, 109, 118,
Protection of War Victims (Red Cross 119, 157, 365, 378, 384, 385, 389,
Conventions), 45, 98, 102, 103, 104, 657
128, 139, 140, 164, 193, 195, 196, Guarding of Machinery Convention (no.
197, 198, 199, 202, 427-47, 578 119), 117
740 Index of International Instruments
Holidays with Pay Convention (Revised) Unemployment Provision Convention

(no. 132), 118 (no. 44), 121
Hours of Work (Industry) Convention Weekly Rest (Industry) Convention (no.
(no. 11, 117, 378 14), 118
Hours of Work and Rest Periods (Road Workers Representatives Convention
Transport) Convention (no. 153), (no. 135), 118, 119, 157
118 Working Environment (Air Pollution,
Human Resources Development Noise and Vibration) Convention
Convention (no. 150), 116 (no. 148), 117
Hygiene (Commerce and Offices)
Convention (no. 120), 117 League of Nations, Covenant of, 21, 63,
Invalidity, Old Age and Survivors 82, 112
Benefits Convention (No. 128), 120
Labour Relations (Public Service) Organization of African Unity, Convention
Convention (no. 151), 119 Governing the Specific Aspects of
Maternity Protection Convention (no. Refugee Problems in Africa, 149
103), 120, 122 Organization of American States
Medical Care and Sickness Benefits American Convention on Human Rights,
Convention (no. 130), 120-21 32, 53, 87, 90, 113, 140, 142, 148,
Migrant Workers (Supplementary 156, 158, 187, 190, 454, 546, 547,
Provisions) Convention (no. 143), 548, 553, 555, 654, 678
120 Protocol, 548
Migration for Employment Convention Caracas Convention on Diplomatic
(no. 97), 100, 131 Asylum, 102, 149
Minimum Age Convention (no. 138), 122 Caracas Convention on Territorial
Minimum Wage Fixing Convention (no. Asylum, 102, 149
1311, 117 Convention on Granting Political Rights
Night Work of Young Persons of Women, 158
(Industry) Convention (Revised) Convention on the Nationality of
(no. 90), 122 Women, 566
Night Work of Young Persons Convention on the Right of Asylum,
(Non-Industrial Occupations) 102, 149, 266
Convention (no. 79), 122 Inter-American Convention on Freedom
Occupational Cancer Convention (no. of Expression, Information and
139), 117 Investigation (Draft), 553
Prevention of Accidents (Seafarers) Montevideo Convention on Political
Convention (no. 134), 117 Asylum, 102, 148
Radiation Protection Convention (no.
1551, 117 Unesco
Reduction of Hours of Work Convention against Discrimination in
Recommendation (no. 116), 117 Education, 88, 94, 95, 125, 410-15
Right to Organize and Collective Protocol, 413
Bargaining Convention (no. 98), Convention for the Protection of
118, 119, 157, 378 Cultural Property in the Advent
Safety Provisions (Building) Convention of Armed Conflict, 128, 197, 258,
(no. 62), 117 403-10, 427
Social Policy (Basic Aims and United Nations
Standards) Convention (no. 117), Convention against Torture and Other
123 Cruel, Inhuman or Degrading
Social Security (Minimum Standards) Treatment or Punishment, 146
Convention (no. 102), 100, 101, 120, Convention concerning Trust, Non-Self-
121, 122, 395 Governing and other Territories, 329
Convention for the Suppression of the 92-93, 247, 291, 304, 306, 348-51,
Traffic in Persons and of the 416, 639, 643
Exploitation of the Prostitution of International Covenant on Civil and
Others, 97, 146, 353, 354, 355 Political Rights, 29, 30, 35, 45, 48,
Convention on Consent to Marry, 51, 52, 53, 72, 73, 74, 83, 89, 91,
Minimum Age for Marriage and ,97, 115, 118, 119, 135, 136, 137, 139,
Registration of Marriages, 97, 140, 142, 143, 150, 152, 156, 157,
121, 153, 258, 352 158, 159, 160, 162, 163, 166, 186,
Convention on Privileges and Immuni- 187, 189, 190, 219, 225, 251, 253,
ties, 342 269, 305, 309, 334-43, 365, 395, 413,
Convention on the Elimination of All 455, 556, 557, 558, 559, 562, 640,
Forms of Religious Discrimination, 657, 673, 674, 676
84, 94 Optional Protocol, 37, 89, 270, 330,
Convention on the Elimination of All 331, 335, 336, 343-48, 471, 562, 563,
Forms of Discrimination against 581, 657, 677
Women, 31, 88, 96, 255, 257, 277, Optional Protocol (1976), 245
306, 352 Protocol, 28, 556
Convention on the International Right International Covenant on Economic,
of Correction, 156, 247, 355, 356 Social, and Cultural Rights, 28,
Convention on the Nationality of 29, 30, 48, 51, 52, 89, 91, 112, 113,
Married Women, 96, 145, 233, 114, 115, 116, 120, 127, 128, 130,
258, 352 131, 132, 143, 157, 158, 179, 241,
Convention on the Non-Applicability of 243, 245, 251, 269, 331-34, 342,
Statutory Limitations to War 365, 395, 455, 556, 559, 647, 657,
Crimes and Crimes against 673
Humanity, 47, 92, 144, 247, 350, 643 International Covenants on Human
Convention on the Political Rights of Rights, 5, 43, 49, 50, 51, 54, 56,
Women, 96, 158, 233, 257, 352 67, 87, 95, 233, 234, 304, 305, 330,
Convention on the Prevention and 389, 451, 580, 581, 601, 609, 632,
Punishment of the crime of 665
Genocide, 31, 36, 47, 92, 97, 107, Supplementary Convention on the
136, 142, 144, 243, 267, 348, 350, Abolition of Slavery, the Slave
351, 639, 642 Trade, and Institutions and
Convention on the Reduction of Practices Similar to Slavery, 146,
Statelessness, 102, 145, 351 182, 354, 355
Convention relating to the Status of
Refugees, 101, 102, 145, 351 Vienna Convention on Diplomatic
Convention relating to the Status of Relations, 429
Stateless Persons, 101, 102, 145, Vienna Convention on the Law of
351 Treaties, 107, 160, 200, 608
International Convention against the
Taking of Hostages, 249 War on Land, The Fourth Convention
International Convention on the concerning the Laws and Customs
Elimination of All Forms of Racial of (The Hague), 102
Discrimination, 31, 34, 45, 72, 73,
77, 79, 80, 84, 88, 93, 94, 95, 115,
117, 126, 137, 139, 158, 219, 222, DECLARATIONS
247, 270, 307-330, 333, 341, 349, 395
Protocol, 306 African Child, Declaration on the Rights
International Convention on the and Welfare of the, 602, 613
Suppression and Punishment of Apartheid, Declaration on the Suppression
the Crime of Apartheid, 31, 36, 80, and Punishment of, 45, 293
742 Index of International Instruments
Apartheid in Sports, International Declaration on Principles of Interna-

Declaration on, 248 tional Law concerning Friendly
Arab Charter of Human Rights, Draft Relations and Co-operation among
Declaration for, 575, 579 States, 195, 196
Arab Citizens, Declaration of the Rights Declaration on Social Progress and
of, 224, 454 Development, 132, 248, 659
Declaration on Territorial Asylum, 102,
Disabled Persons, Declaration of the 246
Rights of, 248 Declaration on Torture, 145, 247
Declaration on the Elimination of All
European Declaration of Human Rights, Forms of Discrimination against
71 Women, 75, 88, 95, 96, 255, 257
Declaration on the Elimination of
French Declaration of the Rights of Man Religious Intolerance, 94, 246
and of the Citizen (1789, 1793), 5, 8. Declaration on the Establishment of a
9, 14, 15, 16, 19, 20, 673 New International Economic
Friendly Relations and Co-operation Order, 123, 124, 181
among States, Declaration on Declaration on the Granting of
Principles of International Law Independence to Colonial Countries
concerning, 66, 75 and Peoples, 56, 65, 66, 75, 88,
139, 195, 223, 236, 248, 308, 324,
International Labour Organisation 347, 350, 609, 638, 643, 644
Declaration of Aims and Purposes, 99 Declaration on the Protection of Women
Declaration of Philadelphia, 46, 364, 388 and Children in Emergency and
Tripartite Declaration of Principles Armed Conflict, 248, 258
concerning Multinational Enter- Universal Declaration on Human
prises and Social Policy, 660 Rights, 4, 21, 23, 24, 25, 27, 30, 32,
33, 43, 48, 50, 54, 57, 70-71, 72,
Mentally Retarded Persons, Declaration 73, 74, 75, 78, 83, 87, 88, 89, 91, 95,
on the Rights of, 248 97, 102, 106, 111, 112, 115, 118,
119, 121, 126, 127, 128, 130, 137,
Organization of American States, 139, 140, 142, 145, 147, 149, 158,
American Declaration of the Rights 160, 162, 177, 179, 184, 186, 191,
and Duties of Man, 24, 46, 48, 87, 193, 222, 223, 226, 234, 241, 244,
90, 91, 92, 138, 140, 142, 222, 556, 245, 246, 247, 250, 251, 253, 254,
557, 561, 568, 673, 677 261, 262, 266, 279, 292, 304, 317,
365, 403, 419, 454, 545, 556, 579,
Scientific and Technological Progress, 583, 584, 585, 586, 591, 593, 594,
Declaration on, 248 595, 600, 601, 602, 603, 604, 605,
Societies for Life in Peace, Declaration on 644, 654, 655, 665, 671, 672
the Preparation of, 248 United States Declaration of Indepen-
dence, 8, 191
Unesco
Declaration on Race and Racial Virginia, Declaration of, 14
Prejudice, 77, 178, 328, 415-16
Proposals on Biological Aspects of the Women and Their Contribution to
Racial Question, 77 Development and Peace, Declara-
United Nations tion of Mexico in the Equality of,
Declaration of the Rights of the Child, 259
98, 121, 154, 246 Working and Exploited Peoples,
Declaration on Permanent Sovereignty Declaration of the Rights of the,
over Natural Resources, 233 111
General Index
Africa, 183, 583-630 Asia, 651-70

humanism in, 588-89 Assembly, freedom of, 46, 48, 52, 67, 68,
Albania, 646 88, 94, 109, 112, 138, 157, 219, 364,
Aliens, 101, 102, 147, 163, 179, 198 366, 367, 370, 374, 376, 377, 378,
equality of, 131, 152 383, 388, 459, 538, 539, 558, 560,
protection of, 105, 106, 150 586, 633, 658, 659
in relation to nations, 106 collective element of, 67
in relation to social security, 121 in developing countries, 184, 590, 597
rights of, 148, 149, 559 during emergency situations, 193
rules of treatment of, 44 as essential component of political and
Amnesty International, 110, 227, 657, 664 social life, 157
Angola, 379, 587, 610 essential to trade union rights, 119, 365
Apartheid, 31, 36, 44, 47, 48, 57, 80, 93, IL0 protection of, 381-84
108, 132, 181, 235, 248, 249, 253, individualistic element of, 67
261, 262, 267, 272, 278, 283, 284, for refugees and stateless persons, 102
288, 290, 294, 297, 316, 348, 354, for workers, 99
355, 364, 415, 416, 587, 608-9, Asylum, right to, 102, 138, 149, 150, 240,
610-12, 639-41 246, 266, 559, 590
definition of, 93 Atlantic Charter, 22, 64, 585
International Anti-Apartheid year, 293 Australia, 238, 268, 375, 376, 665
as slavery-like practice, 294 Austria, 68, 146, 147, 457, 458, 459, 464,
UN strategy against, 287, 289, 349 467, 473, 501, 516, 538, 674
women under, 293 Authoritarianism, 656
Appeals, 222, 267, 270, 271, 559
to Commission on Human Rights, 35, Bangladesh, 240, 434, 435, 436
36, 37, 251 Barbados, 565
cornerstone for implementation of Belgium, 156, 157, 267, 272, 457, 458, 459,
human rights, 225 464, 467, 516, 518, 520, 521
to regional commission on human rights, Belize, 238
36 Bolivia, 259, 295, 383, 565
in USSR, 636 Brazil, 221, 565
Arab Commission on Human Rights. See Bulgaria, 267, 646
League of Arab States Burma, 387
Argentina, 254, 272, 383, 565, 567
Armed conflicts. See Emergency situa- Canada, 347
tions, in case of armed conflict; War Cape Verde, 587
744 General Index
Capitalism, 655 Columbia, 565

Capital punishment, 144, 189, 290 Commission on Human Rights (UN), 22,
Cassin, Rene, 23, 26, 35, 363, 594 28, 35, 47, 84, 87, 92, 98, 106, 109,
Children 110, 111, 146, 178, 181, 184, 217,
International Year of the Child, 154 218, 219, 221, 226, 237, 241, 242,
protection of, 52, 97, 98, 99, 104, 112, 243-51, 252, 264, 265, 269, 270, 271,
121, 122, 151, 248, 283, 363, 366, 272, 275, 282, 285, 286, 287, 295,
538, 567-68 330, 331, 342, 349, 395, 451, 452,
rights of, 154, 558, 613 578, 641
Chile, 146, 165, 219, 259, 275, 278, 295, Ad Hoc Working Group of Experts,
378, 379, 383, 386, 546, 554, 555, 289-91, 351, 587
565, 641 anti-apartheid policy of, 288, 290, 291,
China, 260, 657 292
Churchill, Winston, 22 appeals to, 35, 36, 37
Civil and political rights, 18, 19, 20, 21, Committee of Experts, 578
25, 27, 30, 44, 48, 50, 51, 53, 55, policy of, for violations, 272-77
61, 73, 74, 90, 91, 113, 127, 135-73, reports on human rights, 278-81,
297, 330, 331, 544, 545, 558, 562, 333
635, 655 Sub-Commission of, 264
classification of, 138 Commissions and Committees. See
and constitutional law, 111 International Labour Organisation;
in developing countries, 184, 584, 586, Red Cross, International Commit-
657 tee of; United Nations
during emergency situations, 186 Common African, Malagasy and Mauritian
emphasized by OAS, 548, 553, 555, 557 Organization, 132
equal, for men and women, 566, 581 Commonwealth Human Rights Commis-
human rights reports on, 279, 280 sion, 452-53
in ideas of the French revolution, 67 Communism, 645
and the ILO, 363 Conscientious objection, 155
individualistic character of, 49 Conservation, 124, 125
peace essential to, 636, 637 Constitution. See names of individual
protected through UN instruments, 95 countries
as related to economic, social, and Constitutional law, 16, 20, 27, 35
cultural rights, 29, 30, 49, 50, 52, and civil and political rights,
137, 179, 180, 181, 537, 560, 665 111
in relation to trade unions, 119, 365 human rights in, 17
should be guaranteed as immediate as protecting equality, 68
obligation, 51 and racial discrimination, 79
in socialist countries, 632 and religious freedom, 82
treaties relating to, 142, 143 in socialist countries, 17
of women, 96, 256-58 Conventions. See Index of International
Collective bargaining, right to, 99 Instruments
Collective rights, 21, 27, 29, 53, 56, 613, Costa Rica, 323, 564, 565
652 Council for Mutual Economic Assistance
essential for minorities, 55 (CMEA), 647
in relation to individual rights, 54, 55, Council of Europe, 87, 121, 132, 165, 219,
56, 57 394, 395, 453, 454, 457-542. See
Collectivist conception of human rights, also European Commission of
57. Compare with Individualistic Human Rights; European Court of
conception of human rights Human Rights; European Social
Colombia, 266, 347 Charter
Colonialism. See Decolonization aim of, 457
General Index 745
Committee of Government Experts on Discrimination. See also Non-

Human Rights, 471, 539-40, 541, discrimination
542 definition of, 270
Committee of Independent Experts, 541 effect versus intention, 69
Committee of Ministers, 37, 220, 225, IL0 definition of, 94
459, 460, 462, 464, 468, 474, 475, International Year to Combat Racism,
497-503, 515, 523, 524, 525, 536, 292
539, 540, 541, 542 as negative formulation of equality, 69
Consultative Assembly, 460, 461, 497, political, 73
513, 536, 540, 541 prohibition of, 38, 602
democracy central to, 457 racial, 44, 45, 47, 48, 57, 88, 93, 136,
Governmental Committee, 540, 541, 542 137, 164, 181
Secretary-General, 459, 463, 467, 468, definition of, 76, 78, 80
474, 497, 515, 525, 536, 540-41 in relation to freedom of expression,
Statute of the, 10, 223, 514, 536, 540, 78
674 and UN Charter, 75, 76
supervision by petition, 226 UN definition of, 94
Cuba, 223, 240 in World War II, 75
Cultural property, protection of, 403-10 religious, 73, 76, 81, 82, 83, 84, 137
Cultural rights, 127-30. See also reverse, 256
Economic, social, and cultural sexual, 69, 73, 74, 76, 88, 256, 277
rights static 410
Custom, 33, 34, 106, 107, 139, 429 Dominican Republic, 383, 546, 565
Cyprus, 146, 315, 457, 458, 516, 538 Drittwirkung, 152, 160
Czechoslovakia, 646; Constitution of, 634 Due process, right to, 46, 90, 101, 103,
138, 151, 152, 153, 162, 163, 166,
Decolonization, 196, 232, 297, 350, 593, 182, 459, 558, 559, 563, 598, 658
664. See also Liberation movements during emergency situations, 193, 194,
in Africa, 612 195
colonialism, 57, 62, 76, 641, 643, 644
in developing countries, 185 East Timor, 238
essential to human rights, 584, 586, 587, Economic, social, and cultural rights, 28,
609, 610 29, 30, 48, 49, 50, 51, 53, 54, 55,
importance of cultural identity to, 129, 56, 61, 90, 111-133, 240-42, 297, 332,
130 536, 537, 544, 545, 546. See also
and issue of racial discrimination, 76 Cultural property, protection of
as link between human rights and central to European Social Charter, 458
development, 178 for developing countries, 114, 181, 586,
UN strategy for, 56, 65, 66, 223, 225, 594, 595, 657
233, 236-38, 272, 289, 294, 330, emphasized by ILO, 363
643-44 emphasized by OAS, 547-48, 553, 555,
Denmark, 146, 347, 457, 458, 459, 463, 557, 559, 562
464, 516, 538 human rights reports on, 279
Despotism, 9 peace essential to, 636-37
Developing countries, 176, 177, 178, 182, protection of, 95, 539
183 science essential to, 401
Development of women, 96, 256-57
and the free choice of work, 183 Economic and Social Council (ECOSOC).
conditions of, 177, 178, 179 See United Nations
link of, to human rights, 177, 179, 180 Ecuador, 323, 565
right to, 178 Education
UN strategy for, 180, 181, 202 compulsory, for children, 547
746 General Index
equality of access to, 257 458, 459-75, 497, 516, 519, 536, 674,
human rights, 286 675, 677
importance of to fundamental freedoms, competence of, 463-67
125 organization and operation of, 460-63
right to, 125-27, 132, 257, 459, 547, 560, proceedings before, 467-74
591, 632, 633, 634 relation of to European Court of Human
Egypt, 272, 315, 406, 407, 575 Rights, 520, 522-23, 524
Eisenhower, Dwight David, 278 European Court of Human Rights (Council
El Salvador, 259, 322, 565 of Europe), 10, 37, 91, 109, 150,
Emergency situations, 175-212, 283 157, 187, 217, 220, 225, 226, 458,
in case of armed conflict, 190-200, 202 459, 461, 463, 474, 475, 497, 498,
in case offorce mujeure, 185, 186-90, 500, 503, 513-25, 536, 675
202 organization and working of, 513-15
definition of, 175 procedures of, 517-25
not pretext for human rights violations, European Social Charter (Council of
185 Europe), 48, 51, 52, 87, 90, 113,
time period of, 597 221, 225, 377, 389, 395, 453, 458,
of war, 175 536-42
Engel, Friedrich, 631 Governmental Committee of, 540
Environment. See Sovereignty, over implementation of, 539-42
natural resources purpose of, 536
Equality. See also Non-discrimination rights protected by, 538-39
of all cultures, 130 and the right to strike, 120
as constitutional principle, 68, 69, 79 Expression, freedom of, 22, 44, 45, 46, 48,
of educational opportunity, 127, 410-15 54, 68, 73, 80, 83, 90, 94, 135, 138,
as general human right, 61 155, 156, 165, 244, 247, 253-54,
of job opportunity, 131, 371 271, 383, 388, 459, 558, 559, 580,
legal, 38, 44, 46, 55, 62, 68, 69, 138, 152 586, 588, 633, 658, 659
in Africa, 586 abuses of, 156
emphasized by OAS, 558 in developing countries, 183, 184,
as fundamental, 61 589
between men and women, 73, 74, 96, during emergency situations, 186
153, 254-60, 353, 566, 567 essential to ILO, 364
and principle of non-discrimination, human rights reports on, 279
71, 72 protection of, 285
in UN Charter, 70 in relation to trade unions, 119
of opportunity, 57, 547 in socialist countries, 634
as political right, 38 in voting, 158
principle of, 12, 13, 39, 55, 68, 71, 72, 74
as principle of human rights Family
instruments, 90 protection of, 153, 14
in relation to discrimination, 70 right to, 153
in socialist countries, 634, 635 FAO. See United Nations, Food and
universal, 38 Agriculture Organization
of standards in education, 126 Fascism, 21, 640, 641, 643, 644
for workers, 100, 115, 116 Fiji, 665
Equatorial Guinea, 295 Finland, 347, 412, 413
Ethiopia, 266, 343 Four Freedoms, 22, 585
European Commission of Human Rights France, 260, 268, 284, 457, 458, 459, 464,
(Council of Europe), 37, 91, 93, 466, 516, 538, 597
108, 109, 146, 150, 157, 187, 189, Conseil d%tat, 221
217, 219, 220, 225, 226, 413, 454, Constitution, 16, 586, 604
General Index 747
Freedom. See also Assembly, freedom of; Individualistic conception of human rights,
Expression, freedom of; Religious 49, 54
freedom Individual rights, 27, 39, 50, 544, 599, 652.
fundamental, 51 See also Collective rights
lawful deprivation of, 150 as protected by the UN, 55
principle of, 8, 12, 13, 43, 49 in relation to collective rights, 53-54, 56,
right to, 150 57
French Revolution, 54, 67, 68 Indonesia, 665
Information, freedom of. See Expression,
Geneva Conventions. See Index of freedom of; Press, freedom of the
International Instruments Inter-American Commission on Human
Genocide, 31, 36, 47, 93, 97, 107, 137, 142, Rights (OAS), 46, 92,146, 217, 218,
144, 163, 164, 182, 234, 243, 267, 219, 221, 223, 225, 346, 454, 546,
348, 350, 416, 639, 641, 642-43, 644. 547, 548-55, 556, 557, 560, 562, 563,
See also Index of International 564, 565, 568, 677, 678
Instruments, United Nations: procedures for handling violations, 47
Conventions on the Prevention Statute of, 549, 550, 551, 552, 553, 554,
and Punishment of the Crime 563
of Genocide Inter-American Court of Human Rights
definition of, 92, 136 (OAS), 220, 330, 545, 555, 557, 562,
UN resolution on, 92 563, 564, 565
German Democratic Republic, 646 International Association of Democratic
Germany, 19, 62, 68 Lawyers, 227
Germany, Federal Republic of, 77, 146, International Atomic Energy Agency, 304
235, 247, 376, 457, 458, 463, 464, International Bill of Human Rights, 14,
465, 516, 538 54, 89, 105, 135, 139, 161, 245, 306,
Ghana, 147, 378, 379 330
Golan Heights, 315 International Commission of Jurists, 110,
Greece, 146, 223, 272, 378, 379, 385, 387, 227
454, 457, 458, 473, 475, 501, 516 International Conference of American
Greenland, 463 States, 24
Grenada, 565 International Conference on Human
Guatemala, 295, 565 Rights (Teheran), 179, 180
Guinea Bissau, 587, 610 International Court of Justice (UN), 45,
47, 76, 106, 109, 139, 231, 261,
Habeas corpus, 221 266-69, 304, 308, 309, 320, 328, 330,
Haiti, 565 331, 343, 350, 353, 366, 378, 381,
Health, right to, 124, 132, 538, 634, 642, 382, 386, 387, 394, 413, 414, 453,
672 501, 502, 517, 608
Hitler, Adolph, 585 advisory opinion on Namibia, 93
Holocaust, 75 reservations to Genocide Convention
Honduras, 565 case, 107
Hong Kong, 662, 665 International Federation of Human
Hostages, 103, 104, 249, 269 Rights, 227
Human Rights Day, 23 International Fund for Agricultural
Hungary, 267, 387, 646, 648 Development, 123
International Institute of Human Rights,
Iceland, 347, 457, 458, 459, 464, 516, 110
538 Internationalization of human rights, 9, 20,
In camera proceedings, 473, 515 21, 25, 26, 251, 544, 545, 546, 548,
India, 166, 272, 434, 435, 436, 657, 662, 550, 557, 568, 569, 560, 638,
665 671-78
748 General Index
International Labour Organisation, 53, 74, importance of declarations and

87, 88, 95, 113, 158, 183, 218, 221, conventions to, 88
243, 250, 253, 267, 283, 287, 328, protecting collective rights, 55
332, 354, 355, 363-99, 403, 410, 412, protecting self-determination, 62
537, 540, 541, 657, 658, 674 in relation to the individual, 36, 37
anti-Apartheid policy of, 364 requires fair hearing, 162
Commissions treatment of war crimes in, 47
Commission of Inquiry, 109, 226, since World War II, 87
377-81, 386, 388 International Law Association, 200
Fact-Finding and Conciliation International Law Commission, 200, 258,
Commission on Freedom of 303, 304, 305, 350
Association, 219, 278, 379, 381, 382, International Law Organisation, 303
383, 384, 385, 386, 387, 388, 413 Interpol, 354, 355
Committees Iran, 263, 269, 295
Committee of Experts on Indigenous Iraq, 575, 580
Labour, 389 Ireland, 146, 150, 189, 457, 458, 459, 473,
Committee of Experts on the 516, 520, 522, 538
Application of Conventions and Constitution, 111
Recommendations, 187, 189, 224, Israel, 78, 84, 146, 272, 278, 289, 389, 406,
226, 366, 369-71, 372, 375, 376, 380, 407, 409, 578
384, 393, 394 Italy, 68, 77, 156, 323, 347, 457, 458, 464,
Committee on Forced Labour, 389 467, 516, 538, 674
Committee on Freedom of Associa-
tion, 46, 108, 109, 219, 366, 382, Jamaica, 656
383, 384, 385, 386, 388 Japan, 384, 385, 656, 657, 658, 662, 665
Committee on the Application of Bureau of Civil Liberties, 221
Conventions and Recommendations Jordan, 383, 406, 407, 409, 575
of the International Labour Jus cogens, 200, 202
Conference, 371-72, 375, 377, 380
complaints by, 290 Kenya, 592
Constitution, 46, 109, 112, 115, 157, 219, Korea, Republic of, 656, 665
226, 363, 364, 366, 367, 368, 371,
372, 377, 381, 382, 386, 388, 390, Lagos, Law of, 584, 591, 593, 600
403, 676 Lawasia, 664
Conventions (ILO). See Index of League of Arab States, 224, 75-81
International Instruments Arab Commission on Human Rights, 454
equality for non-nationals in, 100 Charter of Human Rights, 579
fundamental principles of, 46 Commission on the Status of Arab
General Conference, 585 Women, 579-80
Governing Body, 278, 417, 660, 676 Committee for the Defence of Human
International Labour Code, 99, 365 Rights, 580
International Labour Conference, 119, Permanent Arab Commission on Human
125, 364, 369, 371, 377, 378 Rights, 224, 575, 576-79, 581
International Labour Office, 290, 366, relations of with UN, 575-77
375, 387, 390, 391, 539 League of Nations, 18, 21, 25, 26, 34, 55,
petitions, 278 111, 253, 266, 389
procedures, 377-87, 391, 392-93 on humane conditions of labor, 112
reports, 224 Mandate System of, 62
on working conditions, 112, 116 Secretariat, 225
World Employment Programme, 390 on suppression of slavery, 97
International law, 20, 21, 24, 25, 26, 27, system for protection of minorities in, 44
28, 31, 33, 34, 35, 39, 44, 671 Lebanon, 259, 406, 407, 575
General Index 749
Lenin, Nikolai, 111, 632 Netherlands, 146, 151, 156, 323, 457, 458,
Lesotho, 385 463, 464, 473, 516, 538
Liberation movements, 104, 105, 184, New Zealand, 238, 268, 665
195-96, 237, 445, 587. See also Nicaragua, 187, 240, 295, 565
Self-determination, right to Nigeria, 591
cultural component of, 129, 130 Nobel Peace Prize, 23
in developing countries, 185, 289, 610, Non-discrimination, 76, 101, 114, 192, 244,
612 314, 453, 459, 611, 638. See also
Liberia, 147, 266, 343, 378, 379 Equality; Minorities, protection of
Liechtenstein, 457 as basis for Unesco, 401
Life, right to, 122, 144, 176, 187, 189, 459, on basis of national origin, 131
558, 559, 589 on basis of race, 44, 45, 46; 93, 94, 106,
Luxembourg, 457, 458, 459, 464, 516 117, 246, 247, 253
on basis of religion, 82, 83, 84, 246,
Madagascar, 347, 587 253
Magna Car-ta, 14, 166, 584 on basis of sex, 95, 96, 97, 100, 112, 117,
Malaya, 387 126, 254-60, 353, 366, 566, 567, 580,
Malaysia, 665 581
Malta, 457, 458 central to Universal Declaration, 70, 71,
Marriage, right to, 153, 459, 558 72, 73, 78, 130
Marx, Karl, 16, 631 and constitutional law, 79
Marxism, 216, 631, 654 as corollary to equality, 61, 71
Mauritius, 347 criteria of, 72, 73
Mexico, 19, 221, 565 in education, 403, 410-15, 417
Constitution, 19, 111, 673 during emergency situations, 185, 193
Minorities in employment, 100, 115, 117, 119, 365,
integration of into nation, 68 366
protection of, 18, 21, 44, 55, 149, 221, essential to economic, social, and
244, 246, 249, 252, 253, 285, 412, cultural rights, 132
672 as fundamental basis of OAS, 543, 547,
in emergency situations, 185 557, 558
internal, 64 as fundamental basis of UN, 95, 231,
in peace treaties, 62 234, 252
and religious freedom, 82 for illegitimate children, 249
rights of, 137, 559 IL0 policy for, 389-90
self-determination of, 63 importance of education to, 79
Mongolia, 657 on international level, 80, 88
Mozambique, 235, 290, 295, 379, 587, 610 and legal equality, 70, 71, 72
and the limitation of penalties, 80,
Namibia, 93, 106, 146, 163, 237, 238, 239, 81
259, 261, 262, 266, 278, 287, 291, principle of, 44, 55, 61-62, 69, 70, 71,
293, 294, 316, 586, 587, 608, 609, 72
610, 612. See also South West in socialist countries, 635
Africa and UN Charter, 70, 72, 73, 74, 75, 80,
Nationality, 77 81
childs right to, 97, 98, 154 UN strategy for, 330
right to, 102, 138, 144, 145, 558 Non-interference. See Sovereignty
womens right to, 97, 258 Norms of human rights, 47, 108, 142,
Natural resources. See Sovereignty, over 175-212, 672
natural resources Norway, 146, 147, 189, 323, 328, 347, 457,
Nazism, 93, 132, 146, 585, 643, 644 458, 459, 464, 473, 516, 538
Nepal, 662, 665 Nuremberg, 146, 152, 166
750 General Index
Ombudsman, 221, 600, 662 Organization of Central American States,

Organization of African Unity (OAU), 149, 132
165, 224, 237, 288, 377, 452, Ottoman Empire, 62
583-630, 664
Assembly of Heads of State and Pacta sunt seruanda, 304
Government, 592, 593, 602, 609, Pakistan, 77, 434, 435, 436
610, 611, 612, 613 Panama, 315, 565
Charter of Addis Ababa, 223, 452, 454, Pan American Union. See Organization of
592, 601-14, 616-30 American States
Commission of Communications, 593 Papua-New Guinea, 665
Committee of Liberation, 609 Paraguay, 554, 565
Co-ordination Committee for the Peru, 266, 565
Liberation Movement of Africa, Petitions, 238, 269, 270, 271. See also
610 Appeals
Council of Ministers, 592, 613 to European Commission on Human
International Commission of Jurists, Rights, 464-66, 467-74
593, 595, 599, 607, 654, 665 to IL0 committee, 674, 676
Specialized Commissions of, 607 to Inter-American Commission on
Organization of American States, 46, 87, Human Rights, 562, 563, 564, 677
90, 165, 217, 219, 225, 543-74, 664. against racial discrimination, 80
See also Inter-American Commis- right of, 54, 218, 227, 350, 471, 677
sion on Human Rights; Inter- to United Nations, 308, 323-27, 329, 343,
American Court of Human Rights 347, 349, 562, 638, 677
Charter, 113, 223, 543, 544, 545, 547, UN procedures for, 269-81
548, 550, 562, 564, 568 Philippines, 272, 657, 665
Protocol of Buenos Aires, 547, 560, Poland, 98, 646
568 Political rights. See Civil and political
Committee on Juridical-Political Affairs, rights
556 Portugal, 147, 287, 290, 378, 379, 457, 458,
conciliation, 219-220 459, 464, 513, 516, 609, 611
Council, 546, 549, 550, 551, 555, 556, Poverty, 176, 179, 364, 653, 662, 657-58
566 Precedent, violation of human rights as,
General Assembly, 548, 550, 553, 554, 164, 166
555, 563, 564, 565 Press, freedom of the, 247, 253-54,
Inter-American Charter of Social 580, 594, 595, 598, 633, 658, 659
Guarantees, 113, 545, 568 Prisoners
Inter-American Childrens Institute, protection of, 192, 249, 282, 289, 290,
567-68 439, 598
Inter-American Commission on Women, social rehabilitation of, 151
566-67 Standard Minimum Rules for, 151, 192,
Inter-American Council for Education, 248
Science, and Culture, 560, 562 Prisoners of war. See War, prisoners of
Inter-American Council of Jurists, 555 Proclamation of Teheran, 51, 57
Inter-American Economic and Social Property rights, 12, 13, 16, 22, 28, 43, 46,
Council, 560, 562 73, 128, 130, 138, 158, 183, 558, 594.
Inter-American Juridical Committee, See also Cultural property,
544, 545, 546, 555 protection of; Economic, social, and
Ministers of Foreign Affairs, 548, 552, cultural rights
555 as political right, 159
Pan American Union, 544 during emergency situations, 186
on refugees and aliens, 102 in relation to cultural heritage, 404
Secretary-General, 549, 567 Prostitution, 97, 146, 194, 253, 353-54, 355
General Index 751
Protecting power, mandate of by Inter-American Commission on

during armed conflicts, 434-36, 437 Human Rights, 552, 560
under Geneva Mandate, 429-36, 437, to International Labour Organisation,
438, 439, 440, 441, 442, 443-44, 375-77
445 periodic, 251, 349, 394, 553
main features of, 429 provided by States, 332-33, 334, 336-38,
substitute for, 436-39 368, 411-12, 639, 640
under Vienna Mandate, 429-30, 431, 435, by specialized UN agencies, 332
441, 444 by Unesco, 406
Puerto Rico, 137 to Unesco Executive Board, 408-10, 412,
416, 420-21
Reciprocity, principle of, 674, 675 to UN on apartheid, 349
Red Cross, International Committee of, Reservations, 305, 328
105, 186, 193, 227, 405, 428, 435, to UN Convention, 326, 329
436, 438, 439, 440, 445. See also Res judicata, 470, 525
Index of International Instru- Revolution. See Liberation movements
ments, Geneva Conventions Rhodesia, 146, 238, 273, 608, 610
delegations of, 439-43 Rights. See also Civil and political rights;
impartiality of, 442 Collective rights; Cultural property;
International Conferences of, 194, 195, Economic, social, and cultural
196, 198 rights; Individual rights; Property
limitations in the use of, 443 rights; Self-determination, right to
position of, as substitute, 444 cultural, 127, 128, 129, 139
right of intervention for, 441 fundamental, 43, 44, 46, 48, 50, 56, 61,
Refugee, 145, 243, 351, 352, 610 76, 83, 89, 115, 162, 176, 178, 180,
definition of, 101, 239 202, 234, 241, 297, 365, 367, 376,
protection of, 101, 102, 149, 239 453, 543, 544, 552, 557, 558, 589,
Regionalism in matters of human rights, 591, 594, 632, 636, 642, 659, 674,
31, 32, 36, 221, 223, 451-55, 556, 675
644, 663-64 legal, 51, 142
Religious freedom, 21, 22, 44, 45, 46, 48, by nature are collective, 54, 56
54, 68, 73, 76, 82, 83, 90, 138, 155, social, as compared to civil rights, 49
163, 459, 558. See also supra-positive, 43
Discrimination, religious; Non- Roosevelt, Franklin Delano, 22, 585
discrimination, on basis of religion Rumania, 267, 646
definition of, 81 Rwanda, 599
international guarantee for, 82, 83
and protection of minorities, 82 Saudi-Arabia, 575
for refugees, 101 Scandinavia, 221
in relation to religious discrimination, 84 Science
in traditional Africa, 589-90 essential to economic, social, and
Report on human rights, 224 cultural rights, 401
by ad hoc conciliation commission, moral code for, 422
341-42 Self-determination, 4, 5, 65. See also
to Committee on Elimination of Racial Decolonization; Liberation
Discrimination, 311-15 movements
by Committee on the Status of Women, collective element of, 67
352-53 as essential condition of all human
to Economic and Social Council, 37 rights, 29, 62, 68
by European Commission of Human as essential to OAU, 601-2
Rights, 501-3 fundamental to UN, 64, 66, 67, 195
to Human Rights Committee, 336-40 of minorities, 63
752 General Index
principle of, 62, 63, 64, 67 Sweden, 146, 157, 323, 328, 347, 387, 412,
right to, 28, 55, 56, 104, 178, 179, 195, 457, 458, 459, 464, 516, 538
196, 223, 225, 233, 236, 279, 297, Switzerland, 68, 194, 407, 429, 434, 435,
559, 580, 584, 604, 606, 609, 613, 436, 457, 458, 459, 464, 501, 516
642, 644, 658, 659 Syria, 406, 407, 575
Senegal, 596, 597
Sexual discrimination. See Discrimination, Taiwan, 665
sexual Thailand, 665
Singapore, 665 Torture, 45, 90, 103, 104, 140, 141, 146,
Slavery, 31, 83, 90, 97, 187, 194, 202, 243, 163, 165, 182, 187, 192, 194, 198,
267, 283, 294 202, 289, 290, 459, 554, 586, 642
prohibition of, 138, 146, 182, 354-55, definition of, 145
459, 558, $596 obligations of government regarding,
UN Working Group on, 253 139
Socialism, 31, 216, 631-50 prohibition of, 145, 193, 290
Socialist conception of human rights, Totalitarianism, 9
631-44 Trade Union
Social rights. See Economic, social, and protection of, 99
cultural rights rights, 49, 53, 99, 114, 118-20, 290, 365,
Social security 380, 382, 383, 384, 386, 595, 597,
as basis of peace, 543 676
European Code of, 113, 121 right to join, 52, 67, 90, 99, 118, 144,
right to, 113, 120-21, 124, 132, 366, 538, 157
539, 634 right to strike, 109, 118, 119, 120
South Africa, 45, 47, 76, 77, 80, 93, 146, Treaty of Versailles, 82, 112, 363, 585
204, 219, 220, 223, 235, 236, 238, Turkey, 146, 457, 459, 464, 473
239, 240, 259, 261, 262, 266, 267,
272, 273, 275, 287, 288, 289, 290, Underdevelopment. See Development;
291, 293, 294, 295, 316, 343, 355, Emergency situations
364, 587, 608, 609, 610, 611, 612, Unesco, 4, 10, 74, 76, 87, 156, 204, 217,
639. See also Apartheid 219, 221, 253, 267, 268, 287, 328,
Southern Rhodesia, 287, 290, 355, 587, 332, 355, 365, 395, 401-26
610. See also Zimbabwe Commissioner-General for Cultural
South West Africa, 290, 587, 610. See also Property, 405, 406, 407, 408, 409
Namibia Committee of Experts on Recommen-
Sovereignty, 35, 36, 62, 67, 266, 503, 596, dations concerning Status of
603, 605, 671. See also Teachers, 412, 416-22
Self-determination Conciliation and Good Offices Commis-
national, and non-interference, 26, 64, sion, 221, 403, 413-15
132, 223, 544, 606, 637, 638, 640, Constitution, 127, 401, 402-3, 410, 411,
645, 647 420, 585
over natural, resources, 56, 132, 159, conventions. See Index of International
178, 179, 233, 297, 604, 658, 659 Instruments
Spain, 267, 268, 387, 388, 389, 453, 457, Director-General, 405, 406, 407, 413,
458, 464, 513, 516, 538 414, 415, 416, 420, 421
Constitution, 111 Executive Board, 177, 407, 408-10, 412,
Sri Lanka, 657, 665 413, 414, 416, 417, 418, 420, 421
Stateless persons, protection of, 101, 102, General Conference, 125, 126, 128, 129,
145, 243, 351 178, 402, 403, 409, 410, 411, 413,
Statutory limitations, 350 414, 415, 416, 417, 418, 421
Suffrage, universal, 135, 136, 138, Non-discrimination in education policy,
158, 184 410-15
General Index 753
procedures, 416-22 Committee on Non-selfgoverning

protection of cultural rights, 129, 403-10 Territories, 66
purpose of, 401 Fourth Committee, 348
Round Table, 654, 655 Human Rights Committee, 219, 221,
UNICEF. See United Nations, Interna- 264, 269, 274, 310, 331, 334-48,
tional Childrens Emergency Fund 352, 413, 562, 640, 676
Union of Soviet Socialist Republics Sixth Committee, 303
(USSR), 19, 236, 260, 276, 387, 587, Special Committee against Apartheid,
632, 633, 636, 646, 648, 673 44, 235-36, 278, 288-89, 349
Constitution, 19, 111 Special Committee on Granting
United Kingdom, 77, 79, 146, 217, 221, Independence to Colonial Coun-
223, 260, 272, 326, 376, 378, 379, tries, 236-38
385, 387, 454, 457, 458, 459, 463, Special Committee to Investigate
464, 465, 466, 473, 475, 501, 513, Israeli Practices, 278
516 Third Committee, 72, 84, 269, 303,
United Nations, 21, 25, 26, 28, 29, 30, 34, 315, 320, 322, 329, 331, 334, 336,
35, 36, 37. See also Commission on 343, 344
Human Rights; International Court Decade for Women, 153, 284
of Justice; Unesco Disaster Relief Co-ordinator, 186, 202
Ad Hoc Working Group of Experts, 44, Division of Human Rights, 284, 293, 296
278 Economic and Social Council, 28, 29, 47,
Charter, 22, 23, 24, 26, 28, 38, 43, 44, 84, 108, 222, 226, 231, 234, 239,
45, 50, 56, 64, 66, 70, 71, 72, 73, 240-42, 244, 246, 251, 254, 255,
74, 75, 76, 80, 81, 83, 89, 93, 95, 258, 264, 269, 270, 272, 273, 274,
105, 106, 112, 115, 128, 139, 140, 275, 277, 278, 280, 281, 282, 283,
141, 163, 164, 178, 185, 193, 195, 285, 286, 288, 289, 290, 291, 294,
196, 226, 231, 303, 334, 342, 343, 295, 303, 304, 306, 330, 331, 332,
348, 349, 419, 451, 455, 502, 543, 337, 342, 343, 346, 352, 354, 382,
591, 592, 602, 603, 605, 607, 609, 607, 640, 677
636, 637, 638, 639, 640, 641, 643, Food and Agriculture Organization
644, 676 (FAO), 332, 355
Commissions General Assembly, 29, 34, 35, 50, 51,
Ad Hoc Commission, 235, 340-42 53, 57, 65, 66, 68, 74, 75, 80, 83,
Commission on the Status of Women, 84, 92, 98, 102, 105, 108, 112, 121,
95, 221, 242, 254-60, 264, 270, 277, 123, 128, 132, 145, 146, 153, 154,
284, 288, 579 159, 179, 181, 195, 219, 222, 231,
Commission on Transnational 238, 266, 267, 268, 272, 275, 277,
Corporations, 660 279, 285, 286, 288, 289, 290, 291,
Good Offices Commission, 235 292, 293, 294, 296, 297, 303, 304,
Committees 306, 308, 309, 310, 312, 314, 315,
Committee of Communications, 310 316, 319, 321, 323, 324, 325, 326,
Committee of Twenty-five, 223, 287 327, 345, 347, 350, 351, 352, 353,
Committee of Twenty-four, 272, 325, 409, 451, 452, 556, 576, 602, 611,
326, 327, 348 638, 639, 643, 660
Committee on Elimination of main committees of 232
Discrimination against Women, 352 subsidiary organs of, 235-40
Committee on the Elimination of voting in, 232-34
Racial Discrimination, 44, 80, 94, High Commissioner for Human Rights,
108, 219, 221, 226, 264, 305, 307, 221, 222
336, 638, 640 High Commissioner for Refugees
Committee on Genocide Convention, (UNHCR), 101, 149, 235, 239-40,
243 250, 303, 306, 351, 355, 435
754 General Index
International Bank for Reconstruction War. See also Liberation movements

and Development (World Bank), crimes, 247, 248, 348, 350, 642, 643. See
237, 238, 657 aLso Index of International
International Childrens Emergency Instruments, United Nations:
Fund (UNICEF), 235, 355 Convention on the Prevention and
International Monetary Fund, 237, 238 Punishment of the crime of
principal institutions founded under, Genocide; Index of Inter-
231-301 national Instruments, Conven-
Relief and Works Agency for Palestine tion on Statutory Limitations to
Refugees, 235, 240 War Crimes
Secretary-General, 34, 232, 250, 261, as emergency situation, 175
268, 271, 273, 277, 278, 281, 283, human rights during, 196-202
285, 286, 287, 290, 291, 295, 311, prisoners of, 103, 104, 140, 219, 235,
312, 313, 316, 317, 318, 321, 322, 435, 436
323, 325, 327, 328, 332, 333, 334, protection of, 195, 196, 197, 198, 199,
336, 338, 339, 344, 346, 349, 351, 429, 432, 434
353, 354, 355, 356, 385, 452, 613, protection of civilians during, 103,
640, 664 104, 198, 199, 248, 404, 427-47, 578
Security Council, 80, 108, 231, 234, 237, and system of protective powers, 434-45
260-63, 266, 278, 287, 289, 330, 349 Warsaw Treaty, 646
self-determination fundamental to, Weimar Republic, Constitution of, 19,
195 111
studies in human rights, 281-86 West Bank, 315
Sub-Commissions Wilson, Woodrow, 21, 62, 63, 64, 65, 67
Sub-Commission of Experts on Women. See also Discrimination, sexual;
Human Rights, 151, 252 Non-discrimination, on basis of
Sub-Commission on Freedom of sex; United Nations, Commission
Information and of the Press, 247, on the Status of Women
251, 253-54, 271 Decade for Women (UN), 153, 284
Subcommission on Prevention of equal work opportunities for, 366
Discrimination and Protection of International Womens Year, 258
Minorities, 47, 84, 185, 221, 226, protection of (mothers), 121, 122, 198,
246, 251-53, 271, 274, 280, 284, 288, 257
291, 293, 348, 354, 355 protection of the rights of, 248, 256, 258,
Sub-Commission on the Status of 285, 538, 566
Women, 251 rights of, 255, 256
Trusteeship Council, 66, 108, 231, 237, status of, 234, 244, 254-60, 277, 284,
263, 278, 288, 326, 327, 638 352-53, 566, 567, 579-80, 581
World Food Council, 123 under apartheid, 293
United States, 165, 216, 238, 260, 263, Work
278, 279, 387, 437, 466, 565, 568, conditions of, 99, 112, 115, 116-18, 124,
587 365, 642
Constitution, 161 equal opportunity in, 99, 100, 257
Universality, 31, 32, 107, 150, 402, 451, forced or compulsory, 99, 100, 115, 146,
455, 583, 594, 601, 634, 654, 661, 147, 183, 243, 365, 367, 370, 374,
666 378, 389, 459, 584-85, 595, 597
Uruguay, 323, 347, 383, 549, 554, freedom to choose, 100, 115, 116, 183,
555, 565 186, 365, 560, 580, 587, 596-97
liberation of from capitalism, 633
Venezuela, 387, 565 right to, 99, 100, 115, 116, 117, 132, 158,
Vietnam, 166, 219, 295, 634, 646, 648 159, 257, 365, 538, 539, 547, 590-91,
Vote, right to, 135, 136, 138, 158, 166 633, 634
..__
I..---
General Index 755
Worker, protection of the, 99, 100, 112, World War II, 21, 218, 235, 434, 437, 575,
115, 116, 117, 120, 131, 363, 365, 585, 587, 592, 646
366, 539, 547
World Bank. See United Nations, Yemen, 575
International Bank for Reconstruc- Yugoslavia, 453
tion and Development
World Federation of Trade Unions, 290 Zaire, 240, 347
World Health Organization, 124, 146, 332 Zimbabwe, 237, 263, 287, 587, 610, 612.
World War I, 21, 62, 673 See also Southern Rhodesia

57 VASAK KAREL The International Dimensions of Human Rights

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

57 VASAK KAREL The International Dimensions of Human Rights

Hochgeladen von

Copyright:

Verfügbare Formate

THE INTERNATIONAL

UNESCO, PARIS, FRANCE

Copyright 0 1982 by Unesco

Unesco ISBN: 92-3-101477-3

_I ___-_ -.-_,_-- -_-._ _I_- .-----

1. Human Rights: As a Legal Reality

1. First Requirement: A De Jure State 4

2. Historical Foundations of Human Rights and Subsequent

1. Human Rights in General 11

PART I: PRINCIPLES AND NORMS OF

1. Fundamental Human Rights-Other Human

2. Civil and Political Rights; Economic, Social and

4. Fundamental Principles of Human Rights:

5. Survey of the Positive International Law of Human

Introduction: Diversity of Sources 87

6. Economic, Social and Cultural Rights

1. The Right to Work 115

7. Civil and Political Rights 135

1. Problems in the Application and Interpretation

8. Principles and Norms of Human Rights Applicable

1. Emergency Arising from Economic and Social

PART II: INTERNATIONAL INSTITUTIONS FOR THE

9. The Distinguishing Criteria of Institutions

1. The Task of Human Rights Institutions 215

SUB-PART I: UNIVERSAL INSTITUTIONS

10. The Principal Institutions and Other Bodies Founded

1. The Principal Organs of the United Nations and the

11. United Nations Institutions and Procedures Founded

General Introduction 303

12. The International Labour Organisation (IL01

Introduction: The Place of Human Rights in the Consti-

13. Unesco and Human Rights

1. Unescos Normative Activities in the Field of Human

4. Procedures Established by the Executive Board or

14. The Implementation of Humanitarian Law

1. The System of Supervision Instituted by the Geneva

SUB-PART II: REGIONAL INSTITUTIONS FOR THE

1. The United Nations and Regional Human Rights

16. The Council of Europe

1. The European Convention on Human Rights 458

17. The Organization of American States (OAS)

1. The Inter-American Commission on

18. The League of Arab States

Introduction: Establishment of the League and Its

19. The Organization of African Unity (OAU) 583

1. Human Rights in Africa by Keba MBaye 583

20. The Socialist Countries and Human Rights

1. The Socialist Concept of Human Rights 631

21. Asia and Human Rights

1. Evolution of the Approach to Human Rights

22. Toward a Specific International Human Rights Law

Annex I. Chart of Ratification, back pocket

Annex II. Figures

1. Comparative Schema of the Implemen-

2. Schema of the Implementation Machinery

3. Comparative Schema of the

Annex III. Selected Bibliography on International

Index of International Instruments 739

8.1 Human Rights Norms Applicable in Cases of Non-

8.2 Comparison of Level of Protection as a Function of the

8.3 Interface Between International Law of Armed Con-

16.1 Applications Declared Admissible 476

16.2 Cases Brought Before the Committee of Ministers 504