Westlaw Document 01-38-56

32 AMULR 1 32 Am. U. L. Rev.
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American University Law Review Fall, 1982 *1 THE NEW INTERNATIONAL LAW: PROTECTION OF THE RIGHTS OF INDIVIDUALS RATHER THAN STATES Louis B. Sohn [FNa] Copyright 1982 by Washington College of Law of The American University; Louis B. Sohn I. THE DYNAMIC CHANGES IN INTERNATIONAL LAW SINCE THE SECOND WORLD WAR The modern rules of international law concerning human rights are the result of a silent revolution of the 1940's, a revolution that was almost unnoticed at the time. Its effects have now spread around the world, destroying idols to which humanity paid obeisance for centuries. Just as the French Revolution ended the divine rights of kings, the human rights revolution that began at the 1945 San Francisco Conference of the United Nations has deprived the sovereign states of the lordly privilege of being the sole possessors of rights under international law. States have had to concede to ordinary human beings the status of subjects of international law, to concede that individuals are no longer mere objects, mere pawns in the hands of states. Before dwelling on the various aspects of this revolution, however, it is useful to turn first to its prehistory, to the various strands of international law from which this new tapestry was woven. The human rights revolution did not appear suddenly full-grown, like Minerva springing from Jupiter's head. Its main substantive rules and its procedural safeguards can be traced back many centuries, to the origin of international law itself. *2 A. The Origins of the Human Rights Revolution The oldest method of protecting the rights of individuals was self-help, not only by the victim, but also by his family, his clan, his nation, and ultimately his sovereign or state. The Bible documents numerous applications of the old adage an eye for an eye, a tooth for a tooth, or, more often, a life for a life. This rule also was applied in medieval times, as illustrated in Shakespeare's Romeo and Juliet. Even in modern times there have been family feuds in such places as Sicily and Corsica; in the United States, the Hatfields and McCoys only recently stopped killing one another. A similar problem arose very early in the international field. Citizens travelling in a foreign country were robbed, enslaved, or killed, sometimes by bandits, sometimes by the feudal lords through whose domains they travelled, or by the soldiers of the country's ruler, for whom a foreigner was fair game, a source of combat booty even if the two countries were not at war. Similarly, mariners frequently looted foreign ships travelling on the high seas. Two sets of rules quickly emerged. First, a state was responsible for what happened within its territory and for its citizens' conduct on the high seas, and, second, the foreigner's home state was entitled to demand reparations for any resulting injury to its citizens. A citizen, especially a merchant, was a valuable asset, and those who damaged that asset diminished the wealth of the foreign prince. Accordingly, the perpetrators were responsible to him as though they had injured a member of his family. If the persons responsible for the injury were not forced to pay for the damage, or if their ruler refused to take action, international re-
2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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sponsibility did arise. The foreign ruler, his assets, and his citizens were deemed to be collectively responsible for the damage to the foreign citizen; as a first step, the victim's ruler was entitled to authorize the victim, his family, or his partners in the commercial venture to use self-help against the other country and its citizens. The ruler issued letters of marque and reprisal authorizing the capture of vessels or cargoes belonging to the state responsible for the wrong. To mitigate the harshness of this rule, several procedural safeguards were soon devised. Prior to asking his sovereign for letters of reprisal, a citizen had to attempt to obtain justice from the government of the country in which the damage had occurred or whose citizens inflicted the injury. Only when justice was denied and further complaints by his sovereign were rejected did reprisals come into play. When capturing the foreign country's ships on the high seas, the victim was entitled to take only what was due to him. Some countries, especially France and Great Britain, required strict accounting to the government that issued *3 the letters of marque and reprisal. [FN1] The mitigating procedure of international law developed as early as 450 B.C., in the Greek treaty between Oeantheia and Chalaeum, two cities on the Gulf of Corinth. This treaty permitted capture only on the high seas, not in or near a port. [FN2] The idea of exhaustion of local remedies and denial of justice can be traced at least to the ninth century, for example, to the treaties between Naples and Benevent in 836 and between Emperor Lothar I and Venice in 840. [FN3] Later treaties exempted certain categories of foreign citizens from reprisals, including scholars, students, and merchants attending fairs. This method of law enforcement lasted until the nineteenth century; as late as 1858, in the Aves Island case, the United States threatened to issue letters of reprisal against Venezuela if the latter continued to deny justice. [FN4] The next steps were removal of self-help from private hands and centralization of that power in the government. When injury was inflicted on citizens of a country, that country blockaded the wrongdoer's ports, and, if necessary, occupied a part of the country, in order to encourage settlement of the dispute. For example, in 1850 Great Britain blockaded Greece in order to obtain satisfaction for the claims of two men, MM. Finley and Pacifico; [FN5] in 1902 Germany, Great Britain, and Italy blockaded the coast of Venezuela and forced that country to accept an international arbitration of their citizens' claims arising from the Venezuelan civil war. [FN6] *4 In some of these cases, settlement of the injured citizens' claims was imposed by force on the state held responsible for the injuries. In other cases, the matter was submitted for a binding decision to an international claims commission or an arbitral tribunal. Thus, the third stage, decision by an international court of disputes about violations of foreign citizens' rights, was reached. The Permanent Court of International Justice, established in 1920, as well as its successor, the International Court of Justice, established in 1945, heard a number of cases involving private rights. As the Permanent Court of International Justice stated, however, [o]nce a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter, the State is sole claimant. [FN7] Thereafter, the state is said to be asserting its own rightsits right to ensure in the person of its subject, respect for the rules of international law. [FN8] Nevertheless, the burden of exhausting local remedies remained with the private claimant. Until he had exhausted the local remedies, his state was not entitled to bring an international claim. In the words of the International Court of Justice: [T]he State where the violation has occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system. [FN9] As will become evident below, the principle of exhaustion of local remedies has been incorporated into the new law of human rights; a claimant must exhaust local remedies without being adequately satisfied before seeking redress on the international plane. In principle, international law has long been concerned only with the violation of foreigners' rights. In a
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few special situations, however, international protection has been given to citizens suffering from domestic persecution. Tyrannical conduct of a government towards its subjects and gross mistreatment of national or religious minorities have occasionally*5 reached a level at which intervention in the name of humanity was considered permissible. The idea of humanitarian intervention was familiar even in ancient China, where Mencius supported the notion of liberation from tyrants. [FN10] In the era of enlightenment, Emerich de Vattel stated in his Le Droit des Gens that if persecution is carried out to an intolerable degree . . . all Nations may give help to an unfortunate people. [FN11] Humanitarian intervention has occurred in cases of persecution of minorities, especially in the Middle East. Thus, in 1860 the major European powers forced Turkey to accept intervention, in the name of Europe, by French military forces to protect the Christian population in Lebanon against massacres by the Druses. [FN12] Atrocities in Bulgaria in the 1870's led to Russian intervention, and in the 1878 Treaty of Berlin, Turkey accepted special provisions for the protection of minorities. [FN13] A recurring claim, which has been made with some justification, is that countries that engaged in humanitarian intervention were motivated more by a desire to establish spheres of influence or to obtain commercial advantages than by an altruistic motive to alleviate human suffering. In addition, a familiar argument is that humanitarian intervention, being available only to major powers, created a one-sided relationship, without possibility of reciprocal action by the smaller powers. [FN14] Consequently, when the map of Eastern Europe was redrawn after the First World War, responsibility for the protection of minorities was taken out of the hands of major powers and transferred to the League of Nations. In his famous 1919 letter to the Polish Government, Georges Clemenceau explained that the Great Powers would no longer use the right to intervene for political purposes; henceforth, the League of Nations would guarantee certain essential rights of minorities in Eastern Europe. [FN15] The League of Nations' system of minority protection functioned well for fifteen years. Nevertheless, with the advent of the Nazi regime in Germany and its barbaric treatment of minorities, the neighboring countries objected that they alone were bound by minority-protection *6 obligations, while the major powers had no similar responsibilities. [FN16] After the Second World War, therefore, an attempt to revive the minority-protection treaties and to vest in the United Nations the authority to guarantee rights under these treaties did not succeed. [FN17] Instead, a broader system of protection for human rights was established, with the expectation that it would be applied to all human beings, in large and small countries alike. [FN18] Reflections of the earlier protection methods origins in modern law The traditional systems of protecting foreigners and minorities have not disappeared completely. In recent years, the protection of foreigners and minorities has become a major concern of the international community. Many of the procedural rules that were developed for the protection of foreigners and minorities have found their way into the systems of protection of human rights established after 1945. In addition, a comparison of the rules of substantive law applied by international arbitral*7 tribunals and claims commissions in the past two centuries with those embodied in recent instruments on human rights clearly demonstrates that the new rules owe their content not only to domestic constitutional provisions but also to international jurisprudence. This is especially true in such areas as arbitrary arrest, mistreatment of prisoners, access to courts, and adequacy of judicial proceedings. Of course, as will be seen, the new international law of human rights extends far beyond the areas traditionally considered proper for international claims. Similarly, there has been some incorporation of the concept of humanitarian intervention into the United Nations' system. After some hesitation, the United Nations agreed that in cases of gross and persistent violations of human rights as a matter of national policy, as in the case of South African apartheid, the United Nations can deal with the matter regardless of the provision in the U.N. Charter that prohibits the United Na-
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tions from interven[ing] in matters which are essentially within the domestic jurisdiction of any state. [FN19] Gross violations of human rights are now considered to be matters of international rather than domestic concern, and to represent possible threats to the peace, thus allowing the United Nations to go beyond mere condemnation and to impose sanctions against a violator if necessary. [FN20] Collective intervention by regional organizations also has been allowed on some occasions, most recently in Chad. [FN21] Still open to question is whether the U.N. Charter permits military *8 intervention by a state in another state to protect its own citizens or the local population against gross violations of human rights. [FN22] Although many scholars and U.N. statements condemn such unilateral humanitarian intervention, some scholars and governments read narrowly the United Nations' prohibition against the use of force. According to this view, auch action is either a species of self-defense [FN23]especially when uncontrolled mobs attack nationals of another stateor is permissible under article 2(4) of the U.N. Charter if it is interpreted to prohibit only the use of force against the territorial integrity or political independence of any state [FN24] and to allow the use of force in any manner consistent with the purposes of the United Nations. Proponents of this view point out that humanitarian intervention has a limited purpose and does not impair the territorial integrity or political independence of any state; [FN25] the intervening state withdraws after accomplishing its purely humanitarian aim, leaving the territory intact and the government independent. At the same time, it is claimed that intervention to protect human rights cannot be considered contrary to the purposes of the United Nations, one of which is promotion of human rights. [FN26] On the other hand, several instruments construing the U.N. Charter have restrictively interpreted its provisions regarding the use of force by one state against another. For instance, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, [FN27] adopted unanimously by the General Assembly in *9 1970, makes clear that no state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The prohibition against intervention for any reason whatever was designed to make clear that even the best possible reason, such as protection of human rights, does not justify unilateral intervention in the affairs of another state. [FN28] B. The Human Rights Revolution: The Aftermath of the Second World War 1. Effect of the Second World War Returning now to the position of individuals in international law in 1945, it is quite clear that apart from a few anomalous cases, in which individuals were allowed to vindicate their rights directly on the basis of a special international agreement, individuals were not subjects of rights and duties under international law. They merely benefited indirectly from the rule that a state could consider any injury to its citizen as an injury to itself and therefore could attempt to obtain reparation for it. Once a state received compensation from another state for the injury to its citizen, however, it had no duty under international law to transfer that compensation to the citizen; if, for economic or political reasons, the state relinquished the claim or settled it for some small percentage of its original amount, its citizen was deprived of further recourse against the offending state. Thus, a person's protection depended on the conduct of his state, and stateless persons were entitled to no protection whatsoever. At the same time, a state's own citizens were almost completely at its mercy, and international law had little to say about mistreatment of persons by their own government. As noted above, humanitarian intervention by another state, if not completely illegal, was often attributable to political or economic interests rather than concern about human rights. In many instances, such interventions resulted in the imposition of colonial rule. Although perhaps more humane, colonial rule was seldom considered by the people concerned as an improvement over the prior government.
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At the termination of the Second World War, two events completely changed the status of individuals under international law. Both were closely connected with Nazi actions and with other atrocities committed before and during the war. The first event was the punishment of war *10 criminals at Nuremberg and Tokyo; the second was the desire to prevent the recurrence of such crimes against humanity through development of new standards for the protection of human rights. The war crimes tribunals [FN29] made it clear that those who committed atrocities against civilian populations of occupied countries were not entitled to invoke as a defense either that they acted for the state or that they merely followed the orders of their superiors. [FN30] The tribunals pointed out that international law was not concerned solely with the actions of sovereign states, but impose d duties and liabilities upon individuals as well as upon states. [FN31] The General Assembly of the United Nations later affirmed these Nuremberg principles. [FN32] The International Law Commission incorporated a further formulation of the principles into a code of offenses against the peace and security of mankind. [FN33] The final preparation of that code was delayed by disagreement over a definition of aggression, but efforts toward completion of the code were renewed after the U.N. Genersl Assembly approved by consensus a definition of aggression. [FN34] At that time it was once again made clear that wars of aggression are crimes against international peace, and therefore give rise to international responsibility. Although *11 work in this area remains incomplete, there can no longer be doubt that individuals are punishable for committing the crime of war, or war crimes, or crimes against humanity. In addition, the international community is concerned with such new international crimes as apartheid, terrorism, hijacking, crimes against foreign diplomats, and first use of nuclear weapons. [FN35] 2. Codification of the newly recognized human rights In a parallel development, individuals gained rights under international law and, to some extent, means for vindication of those rights on the international plane. This development entailed four different law-building stages: assertion of international concern about human rights in the U.N. Charter; [FN36] listing of those rights in the Universal Declaration of Human Rights; [FN37] elaboration of the rights in the International Covenant on Civil and Political Rights [FN38] and in the International Covenant on Economic, Social and Cultural Rights; [FN39] and the adoption of *12 some fifty additional declarations and conventions concerning issues of special importance, such as discrimination against women, racial discrimination and religious intolerance. [FN40] The pyramid of documents, with the Charter at its apex, has become a veritable internationalization and codification of human rights law, an international bill of human rights much more detailed than its French and American counterparts. Although the existence of the norms embodied in these documents cannot be denied, controversy has been raging for almost forty years about their binding character and practical effect. It has been argued, in particular, that most of these documents are soft law, or even normes sauvages, rather than hard law. According to this view, these documents contain no more than mere guidelines, which states need not follow. Furthermore, there are no effective means of implementing the documents, and violators go unpunished. The better view is that these documents have become a part of international customary law and, as such, are binding on all states. Some of the documents provide appropriate means of implementation, leading to a proper condemnation of violators. Although punishment does not always result, international law as a whole suffers from the same shortcoming because methods of enforcement are still deficient. It is difficult to proceed against great sovereign states, and even more difficult to punish them in any meaningful fashion. States function through individuals, however, and eventually means are likely to be found to punish those who are truly responsible for a state's misbehavior. Although law ideally treats all parties equally, it is well known that the legal enforcement system is less effective against those who are powerful than with respect to those who are poor and weak. Victor Hugo described this in his great romances, The Count of Monte Cristo and Les Miserables. Emile Zola and Charles Dickens observed that even domestic law is imperfect in this respect. [FN41] It is also well known that federal *13 states have difficulty
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keeping their member states in line, except through a disastrous civil war, which the United States and Switzerland, for example, had to survive before they were able to impose the law on dissenting states or cantons. Similarly, powerful multinational corporations and great transnational consortia often have been able to act outside the law, with only minor punishments. Once governments became willing to enforce stronger sanctions, punishing responsible officers as well as the corporations themselves led to more cautious attitudes. On the international scene, it is difficult to persuade governments, which as a group are the international lawmakers, to agree on enforcement against themselves in the event that they violate international law. It is not the law that is soft, but the governments. Usually hiding behind the vital interests of the state, raison dtat,' they find it difficult to declare punishable an act that they may some day wish to commit. Nevertheless, the world has seen recently in the United States that even a powerful President may be forced to resign if it is apparent that he has committed gross violation of the law. In other countries, the same result is often achieved by revolution; it is often forgotten that revolution is an effective sanction. The Universal Declaration of Human Rights pointedly notes in its preamble 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. [FN42] i. The U.N. Charter Although it may be fashionable to disparage the Charter of the United Nations and bemoan its ineffectiveness, most detractors of the Charter have not reviewed it carefully enough and, thus, do not know clearly what it contains. This constitution of the world, the highest instrument in the intertwined hierarchy of international and domestic documents, prevails expressly over all other treaties, and implicitly over all laws, anywhere in the world. [FN43] The Charter was not meant to be a temporary document, to be easily and perpetually amended, but, rather, to be a lasting expression of the needs of humanity as a whole. Its basic provisions, constituting the jus cogens, the practically immutable law of *14 the international community, are broad in scope and sufficiently flexible to permit their interpretation to be adjusted to the needs of each generation. Although the wording of the Charter has changed little since its inceptiononly with respect to the membership of its two executive organsthe meanings of several provisions have been greatly expanded in practice by commonly accepted interpretations. As nature abhors a vacuum, constitutional documents abhor strait-jackets. Great ideas cannot be imprisoned; they must be able to move freely from one part of the earth to another. The U.N. Charter contains several such ideas, which revolutionized the world, although no one knew in 1945 how successful the drafters of the Charter would be in planting in that document the seeds from which many mighty trees would grow. The most influential of these ideas are that human rights are of international concern, and that the United Nations has the duty to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion. [FN44] Although these two ideas were born out of the disasters of the Second World War, they are even more meaningful today than at the time they were first formulated. It is our common duty not only to respect human rights ourselves but also to promote their universal respect and to ensure that they are observed throughout the globe. All members of the United Nationsnot only the original 50, but the more than 150 members todayhave pledged to take joint and separate action, in cooperation with the United Nations for the achievement of these great purposes. [FN45] In the Charter's preamble, the proples of the United Nations as well as their governments, have reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. [FN46] In that statement the authors of the Charter anticipated not only the racial revolution, but also the feminist revolution and the need to
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provide for equality notwithstanding gender. They did not anticipate, however, that more than one hundred nations, most of them small, would clamor for equality with the fifty nations that dominated the world in 1945. ii. The Universal Declaration of Human Rights Although the U.N. Charter mentions human rights in many places, time constraints at the San Francisco conference made it impossible to *15 prepare a more detailed document paralleling the national bills or declarations of the rights of man and of the citizen. It was promised at that time, however, that the United Nations would commence the drafting of an International Bill of Rights as one of the first items of business. The Commission on Human Rights was established in 1946, only a few months after the Charter came into force, and was asked to prepare such a document. [FN47] It soon became obvious that the task could take a long time and, in view of the urgency of the matter, that the first step should be a declaration of general principles, to be followed later by a document containing more precise obligations. Two years later the first documentthe Universal Declaration of Human Rights [FN48]was ready. On December 10, 1948, the General Assembly, after some amendments, approved it unanimously, with eight abstentions: the Soviet bloc, Saudi Arabia, and the Union of South Africa. Although some delegations emphasized that the Universal Declaration of Human Rights was not a treaty imposing legal obligations, [FN49] others more boldly argued that it was more than an ordinary General Assembly resolution, that it was a continuation of the Charter and shared the dignity of that basic document. It merely expressed more forcefully rules that already were recognized by customary international law. Under the latter view, the Declaration would possess a binding character. [FN50] In particular, Professor Cassin, one of the principal authors of the Declaration, explained that the Declaration was destined to guide Governments in the determination of their policy and their national legislation, that it could be considered as an authoritative interpretation of the Charter of the United Nations and as the common standard to which the legislation of all the Member States of the United Nations should aspire, and that it was a development of the Charter which had brought human rights within the scope of positive international law. [FN51] The Declaration itself proclaims that it is a common standard of achievement for all peoples and all nations. It exhorts every individual and every organ of society to strive, by progressive measures, national and international, to secure . . . universal and effective recognition and observance of the rights and freedoms therein . [FN52] *16 Even if governments and scholars were originally in disagreement regarding the importance, status, and effect of the Universal Declaration, practice in the United Nations soon confounded the doubters. Several of the governments that originally were skeptical about the value of the Declaration did not hesitate to invoke it against other countries. Thus, the United States invoked it in the so-called Russian Wives Case, and the General Assembly declared that Soviet measures preventing Russian wives from leaving the Soviet Union in order to join their foreign husbands were not in conformity with the Charter, citing articles 13 and 16 of the Declaration in support of its conclusion. [FN53] The Soviet Union, which originally claimed that the Declaration violated the Charter's prohibition against interference in a state's internal affairs, later voted for many resolutions charging South Africa with violations of the Universal Declaration. [FN54] The obligation of all states to observe the Universal Declaration fully and faithfully was confirmed by two other unanimously adopted declarations, one relating to the granting of independence to colonial territories and the second to the elimination of racial discrimination. [FN55] These declarations were followed, on the twentieth anniversary of the Universal Declaration in 1968, by the Declaration of Teheran, [FN56] in which the International Conference on Human Rights proclaimed that the Declaration states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community. [FN57] More recently, in the Helsinki Final Act, [FN58] the participating States of Western Europe, North America,
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and Eastern Europe agreed that in the field of human rights they will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. [FN59] The Declaration thus is now considered to be an authoritative interpretation of the U.N. Charter, spelling out in considerable detail the meaning of the phrase human rights and fundamental freedoms, which Member States agreed in the Charter to promote and observe. The Universal Declaration has joined the Charter of the United Nations *17 as part of the constitutional structure of the world community. The Declaration, as an authoritative listing of human rights, has become a basic component of international customary law, binding on all states, not only on members of the United Nations. Another revolutionary step thus has been taken in protecting human rights on a worldwide scale. II. THE PROMOTION AND PROTECTION OF CIVIL AND POLITICAL RIGHTS OF INDIVIDUALS A. The Nature of Human Rights' Up to this point it has been assumed that human rights' is a well-known concept and does not require detailed explanation. That assumption is, however, confronted by two problems. First, the theoretical nature of human rights has been debated fiercely, without resolution, since ancient time. In the play Antigone, Sophocles described Antigone's dilemma when King Creon prohibited the burial of her brother, who had been killed while rebelling against the King. When she was arrested for violating that order, she defended her action by claiming that the King could not override the immutable, unwritten laws of heaven. The King replied that traitors must be punished; a state must have laws and they must be obeyed in all things, just and unjust alike; otherwise, there will be anarchy, and there is no evil worse than anarchy. Similarly, when rebelling against the English King, the American revolutionaries in 1776 relied in their Declaration of Independence on the concept of inalienable rights' endowed by their Creator. In the same spirit, the French National Assembly in 1789 set forth in the Declaration of the Rights of Man and of the Citizen the natural and imprescriptible rights of man. [FN60] More recently, Jacques Maritain pointed out: [The] human person possess[es] rights because of the very fact that it is a person, a whole, a master of itself and of its acts . . . by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to a man because of the very fact that he is a man. [FN61] The United Nations' concept of human rights embraces this natural law concept of rights, rights to which all human beings have been entitled since time immemorial and to which they will continue to be entitled as long as humanity survives. Thus, both the Universal Declaration of Human Rights and the two Covenants assert in the first paragraphs *18 of their preambles that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. [FN62] More recently, in specifying the guilding concepts for future human rights work within the United Nations' system, the General Assembly listed among those concepts the natural law idea that a ll human rights and fundamental freedoms of the human person and of peoples are inalienable. [FN63] These inalienable rights, both permanent and universal, differ from rights, bestowed by positive law, that a state can give and take away. The distinction between these two categories of rights becomes evident when a state attempts to limit human rights in the interest of the community during an emergency. Thus, the International Covenant on Civil and Political Rights permits states to derogate from certain of its provisions when a public emergency threatens the life of the nation; [FN64] in contrast, the Covenant does not permit derogation from certain inalienable rights, including the right to life, freedom from torture or cruel, inhu-
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man, or degrading treatment or punishment, freedom from slavery and servitude, nonapplicability of retroactive laws, right to recognition as a person before the law, and the right to freedom of thought, conscience, and religion. [FN65] No state is allowed to deprive individuals of these inalienable rights; such rights are part of a higher law that no positive law can overrule. There are two other categories of rights: first, those which a state can limit in times of emergency, such as freedom from compulsory labor, right to liberty and security of person, right to humane treatment in prison, right to certain minimum guarantees in criminal proceedings, and freedom from interference with privacy, family, home, or corresponnational and, second, those which the state can limit in order to protect national security, public order (order public), and public health or morals. The second category includes the following rights listed in the Covenant on Civil and Political Rights: the right to liberty of movement; the freedom to choose one's residence; the right to a public hearing; freedom to manifest one's religion or beliefs in public; freedom of expression and to seek, receive, and impart information and ideas, orally or in print; right of peaceful assembly; and freedom of association. [FN66] Of the rights listed in the International Covenant on Economic, Social and Cultural Rights, *19 only the rights relating to trade unions are subject to similar restrictions. [FN67] Other rights arising under that Covenant can be limited solely for the purpose of promoting the general welfare in a democratic society. [FN68] Some scholars may find these differentiations petty. Nevertheless, they show the marriage of positivist and natural law doctrines, the positive law helping to enforce natural law distinctions. B. The International Covenants: Overview When the Commission on Human Rights finished the Universal Declaration, it began preparing the other part of the International Bill of Rights, a convention containing precise obligations that would be binding on the States Parties. There were initial fears that the various rights would drown in a sea of limitations and exceptiosn, but this danger was avoided by careful delineation of the conditions under which rights could be limited, and identification of those rights that could not be limited under any circumstances. Another difficulty did, however, arise. It proved impossible to formulate in a parallel manner all the rights listed in the Universal Declaration; it became necessary to divide the materials into two categories: civil and political rights; and economic, social, and cultural rights. [FN69] These two categories were embodied in two separate Covenantsa name that was preferred to the less solemn conventioneach differing from the other in several respects. The main difference was in their treatment after coming into force. States Parties were to give the Covenant on Civil and Political Rights immediate effect through appropriate legislative or other measures and by making available an effective remedy to any person whose rights have been violated. [FN70] In contrast, each State Party to the Covenant on Economic, Social and Cultural Rights agreed only to take steps, to the maximum of its available resources, toward a progressive realization of the rights recognized in that Covenant. [FN71] The Covenant thus contained a loophole: because a state's obligation was limited to the resources available to it, a *20 poor state could proceed slowly, progressing only as fast as its resources permitted. If its resources should diminish, for example, during an economic crisis, its progress could wane. In contrast, the Covenant on Civil and Political Rights permits no such excuses; a state must guarantee civil and political rights fully on ratification, [FN72] subject only to the limitations previously discussed. [FN73] Although doubts have been expressed about the legal force of the Declaration, [FN74] the Covenants are now binding on more than seventy states, [FN75] almost half of th emembers of the world community. Among the parties to the Covenants are states from all regions: Africa, Asia, the Americas, Western Europe, and Eastern Europe. Among members of the European Community, Denmark, France, the Federal Republic of Germany, Italy, the Netherlands, and the United Kingdom have ratified the Covenants. These states are
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also parties to the 1950 European Convention on Human Rights, [FN76] which contains provisions parallel to those in the Covenant on Civil and Political Rights. Two special institutions, the European Commission of Human Rights and the European Court of Human Rights, [FN77] have developed considerable jurisprudence with respect to the European Convention. There are almost daily press releases about cases submitted or decided. In Europe, international decisions on human rights issues thus have become routine; they are no longer extraordinary occurrences. This European jurisprudence throws light not only on the provisions of the European Convention, but also on the similar provisions in the Covenant on Civil and Political Rights. In a discussion of the Covenant, therefore, it might be useful to refer occasionally to the European experience under the Convention. There is also a well-developed inter-American system of human rights, based on the American Convention on Human Rights, [FN78] which entered into force in 1978. The most recent addition to the family of regional human rights instruments is the African*21 Charter on Human and Peoples' Rights, [FN79] approved in 1981. Another general point must be made. Although the rights protected by the Covenants are stated with greater precision than those listed in the Universal Declaration, the former are broad enough in scope to surmount differences among various political, economic, and social systems, as well as among widely differing cultures and stages of development. Consequently, only the last factordifferences in stages of development, especially economic developmentneed be taken into account in applying the Covenant on Economic, Social and Cultural Rights. In contrast, even that factor does not excuse nonimplementation of the Covenant on Civil and Political Rights. The Covenants and national constitutions or laws are meant to coexist. The Covenants do not supersede any constitutions or laws that provide more protection to individuals. [FN80] Where the Covenants go beyond a domestic law in protecting a particular right, the state concerned has the duty to adopt any additional legislative or other measures that may be necessary to give effect to the right recognized in the Covenants. [FN81] C. The International Covenant on Civil and Political Rights 1. Implementation of the Covenant on Civil and Political Rights The Covenant on Civil and Political Rights is to be implemented through a combination of international and domestic law. Its enforcement relies in the first place on national institutions, as each State Party has the duty to ensure that any person whose rights under the Covenant have been violated has an effective remedy against the violator and the access for that purpose to appropriate judicial, administrative, or legislative*22 authorities. [FN82] The Covenant on Civil and Political Rights also provides for international implementation measures. The Covenant not only requires States Parties to present periodic reports on the progress made in enjoyment of the rights recognized in the Covenant, [FN83] but also provides for a Human Rights Committee with jurisdiction over complaints by one state that another state has not fulfilled its obligations under the Covenant. [FN84] This jurisdiction can, however, be exercised only if both states previously have accepted the competence of the Committee to receive such complaints. [FN85] Fourteen countries have accepted this jurisdiction, including the Federal Republic of Germany and the United Kingdom. [FN86] Twenty-seven states, almost double the number of those that have accepted interstate jurisdiction, have accepted another implementation measure, an optional protocol allowing individuals claiming to be victims of a violation of the Covenant to present to the Human Rights Committee communications against the state responsible. [FN87] Both of these new international remedies are subject to one of the oldest rules in the area of state responsibility: a complaint or communication can be presented only when all available domestic remedies have been exhausted and redress has not been obtained. [FN88]
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The guarantees in the Covenant on Civil and Political Rights are designed primarily to protect individuals against arbitrary government action and to ensure individuals the opportunity to participate in government and other common activities. Promotion and protection of human rights not only leads to good government, but is the foundation of freedom, justice and peace in the world. [FN89] To ensure these common ideals, the Covenant was designed to help states improve their domestic *23 laws and institutions so that human rights would be protected throughout the world. Although the Covenant relies primarily on domestic remedies, it also recognizes the new international status of individuals and gives them access to an international committee, at least against those states that have accepted the optional protocol. As noted earlier, onesixth of all the states in the world have accepted this direct method of international vindication of individual rights. [FN90] In addition, almost half of the members of the world community have, by becoming parties to the Covenant, accepted the new international rule that individuals are not mere objects of the provisions of the Covenant but have direct rights under that instrument and ultimately may be able to enforce these rights. Another revolutionary step has thus been taken. At the same time, because individuals' rights are embodied in an international instrument, other States Parties are entitled to demand that it be implemented properly. No longer is an individual's international protection limited to the state of his nationality and subject to its whims. Now, for the first time, any among the more than seventy States Parties can complain that another state has violated the rights of one of its own citizens. Although similar opportunities had been available in the past, never before have they occurred on such a grand scale. Any state can now become an international ombudsman, protecting human rights anywhere for purely humanitarian reasons, without any ulterior motives. No longer is this right to intervene on behalf of a victim of a human rights violation limited to great powers. Any state, however small and weak, can bring the matter before an international body and demand justice. In particular, the Scandinavian countries, in which the idea of an ombudsman originated, have begun to act as ombudsmen in the international arena. The 1967 case that Denmark, Norway, Sweden, and the Netherlands brought before the European Commission of Human Rights against Greece is an example of such international humanitarian statesmanship. [FN91] 2. Substantive provisions of the Covenant on Civil and Political Rights The Covenant embodies several groups of rights. These rights appear in the Covenant in no particular order, although some of the natural rights, long recognized, are given some priority. Thus, the Covenant appropriately begins with safeguards relating to the right to life, the physical integrity of a person, the freedom from slavery and forced labor, the freedom from arbitrary arrest, the freedom from torture or *24 cruel, inhuman, or degrading treatment or punishment, and the right to a fair and prompt criminal process, with all necessary safeguards for the individual's right to an adequate defense. [FN92] Another group of rights concerns the freedom of movement and residence and the right to leave and to reenter one's own country. Although an alien can be expelled from a country, the Covenant provides some procedural safeguards against arbitrary state action. [FN93] Family rights are protected by a succinct provision specifying that no one should be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation. [FN94] Other family rights relate to marriage and the status of children. [FN95] Additional provisions concerning families may be found in the Covenant on Economic, Social and Cultural Rights. [FN96] The Covenant on Civil and Political Rights also protects a group of traditional political rights, which includes the freedoms of thought, conscience, expression, assembly, and association, and the rights to participate in public affairs, to vote, and to be elected. [FN97] Although the Universal Declaration contained a provision on an individual's right to own property and not to be arbitrarily deprived of it, [FN98] the great differences among states on this issue precluded inclusion of a similar provision in the Covenant on Civil and Political Rights. It may be noted that the 1950
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European Convention originally did not contain any provision on the subject, but Protocol No. 1 to the Convention [FN99] remedied this defect in 1952 by adding the provision that no one may be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. [FN100] Unfortunately, although the European and North American countries may be in agreement as to what these principles are, *25 much of the rest of the world seems to disagree. [FN101] i. Protections against discrimination The Covenant on Civil and Political Rights contains several frequently repeated themes. One of them has its origin in the Charter of the United Nations. The Covenant, in a manner similar to but more expansive than the U.N. Charter, requires the protection of individusls' rights 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. [FN102] In addition, the Covenant contains a special undertaking to ensure the equal rights of men and women to the enjoyment of all civil and political rights. [FN103] All persons are equal before the law and are entitled without discrimination to the euqal protection of the law. [FN104] In particular, all persons shall be equal before the courts and tribunals, and all shall have the right to recognition as persons before the law. [FN105] There shall be equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. [FN106] To promote racial equality, the U.N. General Assembly approved in 1965 a separate Convention on the Elimination of Racial Discrimination. [FN107] More than 100 countries have accepted this Convention, [FN108] which prohibits discrimination based on race, colour, descent, or national or ethnic origin, [FN109] but does not apply to distinctions between citizens and noncitizens. [FN110] It allows special measures necessary to ensure that groups adequately advance toward equality. [FN111] States Parties are obliged to prevent not only governmental discrimination, but also discrimination by any persons, group or organization. [FN112] The convention*26 explicitly catalogues a long list of rights that are to be protected, including the right to nationality and the right to inherit. [FN113] The Covenant on Civil and Political Rights protects freedom of religion and the right to worship in public or private. These religious rights are subject to such limitations as may be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. [FN114] In 1981, after a long period of preparation, the General Assembly approved a Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. [FN115] The Declaration guarantees, inter alia, the following freedoms: to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; to establish and maintain appropriate charitable or humanitarian institutions; and to train, appoint, elect, or designate by succession appropriate leaders as required by any religion or belief. [FN116] All such rights, however, are subject to limitations similar to those specified in the Covenant on Civil and Political Rights. [FN117] The Covenant does not recognize the collective rights of ethnic, religious, or linguistic minorities, but it does prohibit State Parties from denying to persons belonging to such minorities the right, in community 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. [FN118] This right is rather limited, and the more controversial issue of minorities' rights to self-determination will be discussed separately. [FN119] The area of discrimination on the basis of gender has also been of great concern to the United Nations. The U.N. Committee on Human Rights, charged with the implementation of the Covenant on Civil and Political Rights, has noted that the relevant provision of the Covenant requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights. [FN120]
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*27 The United Nations has adopted, in addition to the Covenant, several instruments of special interest to women. There are, first, several general antidiscrimination conventions that protect women as well as other groups. For example, the International Labour Organisation (ILO) adopted the Convention concerning Discrimination in respect of Employment and Occupation [FN121] in 1958, and the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention against Discrimination in Education [FN122] in 1960. Second, there are several special instruments dealing explicitly with women's rights, such as the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, [FN123] the 1952 United Nations Convention on the Political Rights of Women, [FN124] the 1957 United Nations Convention on the Nationality of Women, [FN124] the men, [FN125] the 1962 United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, [FN126] and the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women. [FN127] These steps, designed to provide equality for half of the human race and thus to overcome prejudices accumulated over many centuries, are as revolutionary as the granting *28 of independence to more than one hundred countries in the world, and were taken in a mere thirty years. ii. Protections against arbitrary governmental actions The other important theme of the Covenant is the protection of the individual against the arbitrary acts of a government. [FN128] The substantive part of the Covenant begins with the statement that no one shall be arbitrarily deprived of life; [FN129] and, in particular, that a state should not condemn a person to death except for the most serious of crimes. [FN130] In addition, states should not impose a death sentence on persons below eighteen yars of age, or carry out such a sentence on pregnant women. [FN131] Similarly, under the Covenant no one shall be subjected to arbitrary arrest or detention; [FN132] a person can be deprived of liberty only on such grounds and in accordance with such procedures as are established by law; [FN133] an arrested person is entitled to trial or release within a reasonable period of time; [FN134] a person claiming unlawful arrest or detention is entitled to have a court decide that issue; [FN135] and if the arrest or detention is found to have been unlawful, the individual is entitled to compensation. [FN136] The European Court of Human Rights has held prolonged detention to be unlawful and has granted compensation in several cases. [FN137] The Covenant prohibits a state from arbitrarily depriving a citizen of the right to enter his own country. [FN138] The Europen Commission of Human Rights has found that some states do not have sufficient procedural safeguards against immigration officers' arbitrary refusal of admission, and the states concerned have agreed to make the necessary changes in their laws and regulations. [FN139] In addition to protecting individuals against arbitrary governmental acts in the public sphere, the Covenant protects against arbitrary governmental conduct in an individual's private domain. A state may not *29 interfere with the privacy of an individual or his family, home, or correspondence in an arbitrary or unlawful manner. [FN140] The crucial word in each of these provisions is arbitrary. During the drafting of the Covenant, various views were expressed regarding the meaning of this word. Some participants thought that the word meant illegal, without legal grounds, or without due process of law; according to that view, any act authorized by law and performed in accordance with prescribed procedural safeguards should not be considered arbitrary. Others contended that arbitrary meant not only illegal but also unjust, something done capriciously, in accordance with someone's will or discretion, in a despotic, imperious, tyrannical, controlling manner. [FN141] These provisions were meant to be a safeguard against the injustices that a powerful state can easily inflict on a helpless individual; they were intended to ensure that executive officials and police, endowed in all countries with discretionary power to be exercised in the public interest, did not exercise their power without due regard for individuals' rights. [FN142]
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Less controversial, perhaps, is the Covenant's requirement that certain governmental acts, which infringe on an individual's rights, be undertaken only on such grounds and in accordance with such procedure as are established by law. This is, for example, the language applicable in cases of deprivation of liberty. [FN143] Limitations on certain rights in the name of national security or public order must be provided by law, [FN144] or prescribed by law, [FN145] or imposed in conformity with the law. [FN146] The first problem arising with respect to those provisions was the meaning of the general term law. The Europen Court of Human Rights, in the famous Sunday Times Case, [FN147] interpreted this word broadly, applying it not only to statutory law but also to unwritten law, the English common law or equivalent customary law elsewhere. The Court noted, however, that such unwritten law must be adequately accessible to all citizens, and should be formulated with sufficient precision,*30 allowing a person to foresee to a degree that is reasonable in the circumstances, the consequences which a given action may entail. [FN148] The Court continued: Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. [FN149] The basic reason for the general requirement that certain proceduressuch as detention proceduresmust follow rules prescribed by law is to circumscribe arbitrary actions by public officials. There would be no rule of law if every policeman were entitled to decide at his discretion who could be arrested, for what reasons, and under what conditions, or, similarly, if every judge could condemn a prisoner at his discretion and in accordance with his own idea of what the law should be. The Permanent Court of International Justice confronted the problem of unbounded discretion in the 1935 Danzig Decrees Case. [FN150] The Court pointed out that a provision in the Danzig Constitution, similar to that in the Covenant requiring that restrictions on individual liberties be imposed only by law, was not a mere formality that could be fulfilled simply by enactment of a law without regard for its content. On the contrary, according to the Court, the law must define clearly the circumstances in which a person may be deprived of his liberty. The Court recognized that the law cannot always regulate every detail; being composed of a system of general definitions, the law sometimes permits a judge to exercise discretion not only in the interpretation, but also in the application of the law. [FN151] Nevertheless, in some instances, this discretionary power is so great as to exceed any definition of reasonable limits. Accordingly, the Court found the law in question to be contrary to the Danzig Constitution because it allowed a judge to deprive a person of liberty even for an act not prohibited by law, if the judge considered the act deserving of punishment according to the fundamental idea of a penal law and according to sound popular feeling. [FN152] The law accorded to judges excessive discretion: a person could be punished for an act that he could not recognize in advance as punishable. [FN153] The Danzig Decrees decision was sound, and it is quite likely that parallel provisions *31 in the Covenant and the European Convention will be interpreted in a similar fashion. iii. Protections against acts by private citizens Most articles of the Covenant are concerned with governmental or official violations of human rights. In some cases, however, protection might be needed against the acts of private citizens. The Covenant addresses, for instance, the inherent right to life of every human being, and requires that this right be protected by law. The exact meaning and extent of these provisions are uncertain; essentially, two interpretations are possible. Either the state is a guarantor of human life and should make an effort to prevent the taking of a life by another individual, a bandit, or a mob; or, the state is at least obliged to apprehend murderers and punish them adequately in order to deter future murders, not only by the original murderer but also by other persons contemplating a murder. When a sate has failed to exercise due diligence to prevent such injury, and local remedies have been exhausted without adequate redress or justice has been denied, the law of state responsibility for injuries to aliens has been applied. [FN154]
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The issue was raised when the Covenant was drafted. The majority of the Commission on Human Rights expressed the view that States should be called upon to protect human life against unwarranted actions by public authorities as well as by private persons. [FN155] In support of this view is the language of article 2 of the Covenant, which requires all States Parties to undertake not only to respect, but also to ensure the rights recognized in theCovenant for all individuals within its territory and subject to its jurisdiction. Although most individual murders cannot be prevented, a state should take appropriate measures to prevent injuries to individuals whenever a riot or mob violence threatens. A state might also violate the Covenant if it fails to prosecute, lightly punishes, or easily pardons a murderer. Private activities may also constitute violations of the Covenant. For example, a violation of article 20 of the Covenant may occur when private citizens engage in propaganda for war or advocacy of national, racial, or religious hatred, especially if such activity incites discrimination, hostility, or violence. [FN156] Some countries consider such provisions contrary*32 to the right of free speech and freedom of information, and have been reluctant to accept them. The United Kingdom has made a reservation to the whole of article 20, [FN157] and five Scandinavian countries have made a reservation to the provision relating to the prohibition of war propaganda. [FN158] The United States announced its intention to make a reservation to article 20, on the ground that it conflicts with the U.S. Constitution. [FN159] 3. The first generation of human rights: conclusions The Covenant on Civil and Political Rights is the least novel of human rights instruments. It reflects human rights values that have been developing in many countries of the world since the signing of the Magna Carta. Both old and new national constitutions contain similar principles. In addition, international arbitral tribunals have applied these principles extensively in cases of international responsibility for injuries to aliens. The Covenant and the European Convention, as well as the inter-American and African instruments, thus contain generally accepted principles that apply not only to the parties to these instruments, but also to other states. The law of human rights as embodied in the international instruments is not merely treaty law, but rather has become a part of international customary law of general application, except in areas in which important reservations have been made. These documents do not create new rights; they recognize them. Although the line between codification and development of international law is a thin one, the consensus on virtually all provisions of the Covenant on Civil and Political Rights is so widespread that they can be considered part of the law of mankind, a jus cogens for all. Thus, an important step has been taken in enlarging the scope of international law and in providing international protection to many important individual rights. III. THE SECOND GENERATION OF RIGHTS: ECONOMIC, SOCIAL, AND CULTURAL RIGHTS A. Development of the Concept of Economic, Social, and Cultural Rights Civil and political rights are usually traced to the pronouncements of *33 the American and French Revolutions; the concept of economic and social rights, in comparison, is generally assumed to have originated in the Russian Revolution of 1917. It was as a counterbalance to the Third International that the Paris Peace Conference established the first international institution for social justice: the International Labour Organisation (ILO). [FN160] The ILO proved to be particularly successful as an international social institution. Over the years it developed many international labor standards, in the form of conventions and recommendations, as well as an effective system of supervision through periodic reports and the investigation of complaints. [FN161] Nevertheless, it was in response to the Nazi tyranny rather than as a sequel to the ILO that President Roosevelt conceived the idea of an instrument dealing with economic and social rights. In his Four Freedoms' message to the U.S. Congress in 1941, [FN162] President Roosevelt mentioned not only freedom
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of speech and expression, freedom of religion, and freedom from fear (including freedom from wars of aggression), but also freedom from want. The latter requires economic understandings which will secure to every nation a healthy peacetime life for its inhabitantseverywhere in the world. [FN163] In his 1944 Message to Congress, [FN164] President Roosevelt spelled out in more detail the rights that were embraced in his concept of freedom from want. He pointed out that true individual freedom cannot exist without economic security and independence; that p eople who are hungry and out of a job are the stuff of which dictatorships are made; and that i n our day these economic truths have become accepted as self-evident. [FN165] He knew well that in the United States in the 1930's it was the New Deal, with its economic, social, and labor reforms, that prevented economic and social chaos. He felt that, similarly, global chaos and totalitarianism could be stopped only by drastic economic and social reforms throughout the world. Although his two messages were directed primarily to a domestic audience, his words had a worldwide impact, and were not forgotten when the United Nations began to address human rights issues. In the Four Freedoms speech, President Roosevelt had emphasized *34 the social and economic problems which are the root cause of the social revolution which is today a supreme factor in the world. [FN166] He noted that there is nothing mysterious about the foundations of a healthy and strong democracy, and listed expressly the simple and basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. They were: Equality of opportunity for youth and for others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few. The preservation of civil liberties for all. The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living. [FN167] To counter the new order of tyranny which the dictators seek to create with the crash of a bomb, Roosevelt proposed a moral order based on freedom and the supremacy of human rights everywhere. [FN168] This was the message that sustained the people of the world in the dark days of the Second World War, when the forces of evil seemed to be winning both in Europe and in Asia. In his 1944 message, delivered when the situation looked a little brighter, President Roosevelt linked the demand for a just and durable system of peace with the need for a decent standard of living for all individual men and women and children in all nations. [FN169] He emphasized that f reedom from fear is eternally linked with freedom from want. [FN170] When he said that a nation, no matter how high its general standard of living may be, cannot be content . . . if some fraction of its peoplewhether it be one-third or one-fifth or one-tenthis ill-fed, ill-clothed, ill-housed and insecure, [FN171] he had Americans in mind. Nevertheless, that message was even more valid for other peoples, as was the rest of his statement in which he emphasized that true individual freedom cannot exist without economic security and independence. [FN172] Although the United States since its inception had been concerned with certain inalienable political rights designed to safeguard life and liberty, the time had come, the President believed, to accept some economic truths as self-evident and, accordingly, to accept a second Bill of Rights, providing a new basis of security and prosperity . . . for allregardless *35 of station, race, or creed. [FN173] He then presented a list, much longer than that in the 1941 message, of the rights to be included in the second Bill of Rights. They were: The right to a useful and remunerative job in the industries, or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his
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family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education. [FN174] President Roosevelt then challenged the United States to move forward, after the war was won, toward the implementation of these rights and toward new goals of human happiness and well-being. President Roosevelt's idea of freedom from want, announced to the world in 1941, was reflected in an international bill of rights drafted by the United States in 1942. The draft included the following provisions: Article I.Governments exist for the benefit of the people and for the promotion of their common welfare in an interdependent world. Article II.All persons who are willing to work, as well as all persons who through no fault of their own are unable to work, have the right to enjoy such minimum standards of economic, social and cultural well-being as the resources of the country, effectively used, are capable of sustaining. [FN175] At the San Francisco Conference from whcih the U.N. Charter emerged, the United States, together with the United Kingdom, the Soviet Union, and China, proposed the insertion into the Charter of several general references to human rights. U.S. Secretary of State Stettinius referred to the Four Freedoms speech at that time, explaining that freedom from want encompassed the right to work, the right to social security, and the right to opportunity for advancement. [FN176] *36 Australia later took over the fight for an express mention in the Charter of economic and social rights, proposing that the members of the United Nations should pledge themselves to take action both national and international for the purpose of securing for all peoples, including their own, improved labour standards, economic advancement, social security and employment for all who seek it. [FN177] The final text of the Charter's preamble speaks of the determination of the peoples of the United Nations to promote social progress and better standards of life in larger freedom and to employ international machinery for the promotion of the economic and social advancement of all peoples. [FN178] Article 55 of the Charter points out that the creation of conditions of stability and well-being is essential for peaceful and friendly relations among nations. Accordingly, the United Nations was authorized to promote higher standards of living, full employment, and conditions of economic and social progress and development. [FN179] Article 55 contains parallel provisions for promoting both solutions of international economic, social, health, and related problems; and international cultural and educational co-operation, and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. [FN180] Because of this emphasis in the Charter, and perhaps because the chairperson of the Drafting Committee was the President's widow, Eleanor Rooseveltwhom the President had often called his social consciencethe Commission on Human Rights included in the Universal Declaration on Human Rights a number of provisions on economic, social, and cultural rights. The section of the Declaration that contains these rights begins with the almost preambular provision that everyone is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensible for his dignity and the free development of his personality. [FN181] Other provisions deal with the rights to work and equal pay, to protection against unemployment, and to just and favourable remuneration ensuring for himself and his family an existence worthy of
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human dignity; the rights to form and join trade unions; the right to rest and leisure, including holidays with pay; the right to an adequate standard of living, including food, clothing, housing, and medical care; the right to social security, *37 especially against unemployment, sickness, and old age; the right to education; the right to participate in the cultural life of the community; the right to protection of scientific, literary, and artistic production; and the right to a social and international order in which the rights and freedomes set forth in the Declaration, including civil and political as well as economic, social, and cultural rights, could be fully protected. [FN182] B. The International Covenant on Economic, Social and Cultural Rights Although the provisions of the Universal Declaration relating to economic, social and cultural rights were quite detailed, the Human Rights Commission prepared an even more comprehensive documentthe International Covenant on Economic, Social and Cultural Rights. [FN183] This Covenant, completed in 1966, came into force in 1976, and is now binding on more than seventy states. [FN184] Although all states that have become parties to the Civil and Political Covenant have also accepted the Covenant on Economic, Social and Cultural Rights, two additional states, Honduras and the Philippines, have ratified only the latter. [FN185] The States Parties to the Covenant on Economic, Social and Cultural Rights represent all parts of the world; they do not belong to just one geographical or ideological group. There is France and the United Kingdom, the Soviet Union and Romania, Costa Rica and Jamaica, India and Sri Lanka, Kenya and Senegal. Within the past year, five states ratified the Covenant; [FN186] at this rate, there are likely to be more than 100 ratifications by the end of the 1980's, representing two-thirds of the international community. *38 Although the road now seems relatively smooth, it was not so in the beginning. The Commission on Human Rights had already made good progress on the Covenant on Civil and Political Rights when Australia, the Soviet Union, and Yugoslavia proposed that provisions on economic, social, and cultural rights be included in the Covenant. [FN187] The Commission initially was reluctant to address that issue, but the General Assembly requested that it proceed. [FN188] When the Commission finally drafted provisions on the subject, strong opposition surfaced in the Economic and Social Council. Some states announced that they were unwilling to become parties to a binding instrument such as the Covenant if they would thereby have to commit themselves to clauses concerning economic, social, and cultural rights. Their argument was that such rights can be guaranteed only by a sound national economy, not by the signing of a document. Other states insisted that because the United Nations promised in its Charter to promote economic, social, and cultural rights, the Covenant must include such rights. Some participants pointed out that there were important differences between the two categories of rights: civil and political rights could be given prompt legal effect by the adoption of legislation, but economic, social, and cultural rights could be treated only as objectives to be achieved progressively, as the necessary resources became available. The basic civil and political rights were described by some as traditional, subjective, and negative; the economic, social, and cultural rights were characterized as new, objective, and positive. Others considered these latter rights to be indefinite, promotional, and programmatic. [FN189] As a compromise, it was suggested that two covenants rather than one be drafted, so that differences between the two categories of rights could be taken into account. [FN190] The General Assembly reluctantly accepted this idea, but insisted on the need for unity, equal protection of all the rights, and, accordingly, simultaneous preparation and approval of the two documents. [FN191] When the two documents were presented to the General Assembly in 1954, they were generally considered to represent a broad compromise between differing political, economic, and cultural opinions. Although not ideal, the two drafts were regarded as fairly satisfactory. It was pointed out that effectiveness of the Covenants would *39 depend as much on their acceptability as their content. [FN192] It was thus necessary for the General Assembly to balance two considerations: on one hand, acceptance of the lowest possible common denominator would assure
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rapid ratification, but the documents would have no real effect; on the other hand, strict adherence to high ideals might lead states to refuse to ratify the documents, and the instruments would thus be of little value. [FN193] The drafters had to locate the narrow line between these two approaches. The increasing number of ratifications, after early reluctance, proves that they have attained this goal. 1. Implementation of the Covenant on Economic, Social and Cultural Rights the Covenant's implementation i. The progressive nature of
The drafters had to solve several other general problems in connection with the introductory clauses to the Covenant on Economic, Social and Cultural Rights. [FN194] It was agreed first that each State Party should undertake to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its 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 adoption of legislative measures. [FN195] This was an umbrella provision covering all the rights in the Covenant, replacing an unsuccessful attempt to incorporate detailed restrictions and exceptions into each article. Traces of the abandoned approach to exceptions still may be found in some articles of the Covenant, especially in the fine print of articles 13 and 14, which deal with the right to education. [FN196] The main emphasis in the text of article 2 is on the progressive nature of the obligation to achieve economic, social, and cultural rights. [FN197] The drafters recognized in particular that many countries do not yet have the necessary resources, and that time would be needed to develop them. To speed up this development, the text included a gentle hint that states endowed with better resources and technological knowhow should help their less fortunate brethren. This should be accomplished*40 through international assistance and co-operation, especially economic and technical. [FN198] Although the Covenant allows states some latitude regarding the appropriate means' required for the full realization of economic, social, and cultural rights, the drafters felt that legislative measures' should not be neglected, [FN199] because such measures could help establish the policies to be pursued and could provide the necessary legal and administrative framework for the implementation of these policies. These provisions have been criticized for not going far enough and for being full of loopholes. Critics pointed out that to undertake to take steps' for the realization of rights was not equivalent to guaranteeing these rights; that a state criticized for doing nothing could always plead lack of resources; and that to allow states to achieve progressively the realization of the economic, social, and cultural rights would permit indefinite delays. Because the obligations under the Covenant thus could easily be evaded, the value of the document was arguably greatly diminished. [FN200] In defense of the net text, proponents argued that it would have been futile to impose obligations that could not be fulfilled; either no state would ratify the Covenant, or those ratifying it would soon discover that they were unable to comply and therefore would withdraw from the Covenant. Proponents further contended that such noncompliance would provide more support for those who claim that international law is not law because states do not comply with its rules. It also was noted that in an interdependent world a state can never be sure what resources are at its disposal; international economic conditions and terms of trade change constantly and rapidly and are not subject to the control of any one state. Furthermore, the reference to available resources' and the use of the term progressively apparently distinguished between developed and developing countries, yet at the same time imposed on all states a general obligation to achieve progressively higher levels of fulfillment of rights. [FN201] The phrase available resources' contemplates not only the national resources of a county, but also the resources that it might be able to obtain from other countries or international institutions. To implement this idea, the Covenant imposes on the Economic and Social Council the duty to alert those international in-
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stitutions concerned with the furnishing of technical assistance to any *41 matters in the national reports that could assist such institutions in deciding on international measures likely to contribute to the effective progressive implementation of the Economic, Social and Cultural Covenant. [FN202] In addition, States Parties to the Covenant agreed that international action for the achievement of the rights recognized in the . . . Covenant includes . . . the furnishing of technical assistance. [FN203] Thus, the Covenant clearly recognizes a collective obligation to improve economic, social, and cultural standards, another important step toward in interdependent world community. ii. Guarantees against discriminatory implementation A general provision imposes on States Parties the obligation to guarantee that the rights enunciated in the . . . Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [FN204] Thus, whatever level a country reaches in the realization of economic, social, and cultural rights at any given time, the benefits thereof would have to be accorded equally to all persons. This antidiscrimination provision was adopted despite some opposition, which was based to a certain extent on the ground that some countries might be unable to provide immediately for equality of pay between the sexes. [FN205] Unlike most of the other provisions of the Covenant, the antidiscrimination provision is not progressive; it applies as soon as a state ratifies the Covenant. [FN206] The Covenant includes one exception to the principle of equality, however, and another exception was accepted although it is not explicitly mentioned. The Covenant provides expressly that [d]eveloping 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 . . . Covenant to non-nationals. [FN207] This provision was adopted by an almost evenly divided vote (forty-one to thirty-eight, with twelve abstentions); many delegations considered it contrary to the spirit of universality and equality underlying the Covenant, and likely to give rise to discrimination going far beyond the intention of the exception. Defenders of the provision argued that it was needed both to rectify the inequalities that remained in many countries from the colonial*42 era and to remove the strong influence that former colonial masters retained over the national economy of those countries. Although not expressly stated, it was generally accepted that the prohibition of discrimination also should not apply to situations in which a country needs to adopt special protective measures, called affirmative action in some countries, designed to enable certain socially and educationally underprivileged groups to achieve equality. Temporary privileges for such groups constitute badly needed steps toward equality rather than discriminatory actions. [FN208] In view of the special position of women in many societies, it was also thought desirable to add a specific provision imposing on States Parties the obligation to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the . . . Covenant. [FN209] It was agreed that women must enjoy the whole range of economic, social, and cultural rights because such rights are interdependent. [FN210] It would be unrealistic, for example, to allow women to hold public office, if simultaneously they were excluded from schools providing the requisite training. In spite of the Covenant's antidiscrimination theme, one limitation on equality was included: equality is guaranteed only with respect to the rights set forth in the Covenant. [FN211] In order to avoid the perpetuation of some kinds of discrimination, an attempt was made to remove this restriction, but the prevalent view was that states that were willing to agree to precise obligations under the Covenant might be reluctant to sign a carte blanche. Legal systems and traditions of long standing, family customs, and religious tenets could not be changed overnight. The first step could be taken immediately; if additional steps became necessary, they could be taken later.
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iii. Limitations on the exercise of rights under the Covenant The rights in the Covenant on Civil and Political Rights can be limited*43 in time of emergency; [FN212] in contrast, the Covenant on Economic, Social and Cultural Rights contains no comparable provision. Furthermore, while the Covenant on Civil and Political Rights contains several provisions allowing a state to impose restrictions for the purpose of protecting national security, public order (order public), public health or morals or the rights and freedoms of others, [FN213] the Covenant on Economic, Social and Cultural Rights contains only one general [FN214] and one specific [FN215] clause on the subject, both of them more moderate than those in the other Covenant. The general clause allows only such limitations on economic, social, and cultural rights as are determined by law and only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. [FN216] This restriction on a state's power to impose limitations was a compromise between those who found no need for such limitations in this Covenant and those who worried that states might feel free to limit the rights arbitrarily if there were no expressly stated limitations. The first group argued that the Covenant merely recognized rather than guaranteed rights; the rights therein were stated in a broad manner, and states were given wide latitude in regulating and determining the scope of the rights. The second group believed that the Covenant established merely the necessary minimum and that there was no need for limitations to protect morality, public order, or the rights and freedoms of others. The general clause as adopted does not include such broad limitations; instead, it allows only such limitations as may be necessary to promote the general welfare in a democratic society. [FN217] The specific clause is closer in its content to the provisions of the Covenant on Civil and Political Rights, and allows the imposition of limitations on the right to form and join trade unions, and on the right of trade unions to function freely, provided that the limitations are prescribed by law and are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others. [FN218] References in both provisions to a democratic society are analogous to those in articles 21 and 22 of the Covenant on Civil and Political *44 Rights. These articles relate to the right of peaceful assembly and the freedom of association. [FN219] When this phrase was discussed in connection with article 21, some expressed the view that any limitations must be restricted to those that are compatible with the basic principles of a democratic society. In response to the objection that the word democracy might be interpreted differently in various countries, it was argued that a democratic society is one that respects the principles of the Charter of the United Nations, the Universal Declaration of Human Rights, and the Covenants on human rights. [FN220] The phrase democratic society appears also in article 29(2) of the Universal Declaration of Human Rights. The drafters inserted it there on the basis of a similar clause in the statement of essential human rights, prepared in 1946 by a committee of the American Law Institute [FN221] and presented to the United Nations by Panama. [FN222] The limitation was designed to emphasize the general relativity of rights, and the need to prevent abuse of the rights, to the detriment of other individuals or of the State itself. Among the American Law Institute's examples were the following: freedom of religion does not require condonation of ploygamy; freedom of speech does not preclude adoption of reasonable laws prohibiting libel, slander, or blasphemy; and freedom of assembly or association does not prevent the prohibition of parties seeking to establish a dictatorship that would destroy all freedoms. [FN223] iv. The Covenant's interaction with other international documents In considering the substantive articles of the Covenant on Economic, Social and Cultural Rights, one further element must be reviewed. It was recognized early on that various agencies of the United Nations had dealt with most of the issues considered in the Covenant, usually in considerable detail, in numerous conventions and declarations. In particular, the drafters of the Covenant were familiar with the ILO's exception-
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al record in preparing and implementing international labor standards. Consequently, the drafters of the Covenant considered it important not to impinge on the work of the specialized agencies by creating either conflicting provisions or rules that were too precise. Preference thus was given to short, succinct statements of general principles. For example, article 7 of the Covenant calls for just and favourable*45 conditions of work, fair wages, and reasonable limitation of working hours. [FN224] The Covenant also emphasizes the need for continuous progress. [FN225] The specialized agencies were expected to take over from there, elaborating more detailed instruments, overseeing their implementation, and reporting to the Economic and Social Council on the progress made in achieving the observance of the provisions of the . . . Covenant falling within the scope of their activities. [FN226] The system has been working well and the specialized agencies' reports have proven to be crucial in evaluating progress made under the Covenant in recent years. 2. Substantive provisions of the Covenant on Economic, Social and Cultural Rights Among the rights listed in the Covenant on Economic, Social and Cultural Rights, the right to work has been considered basic. [FN227] Effective implementation of this right would presumably eliminate unemployment, thereby banishing poverty and its attendant evils. This in turn would create an atmosphere in which other rights, particularly civil and political rights, could be enjoyed by all. In addition, useful work would benefit both society, through the production of needed goods and services, and the individual, through the feeling of satisfaction that accompanies the use of one's talents and the opportunity to contribute both to individual well-being and the common good. The Covenant specifies that the right to work means primarily that everyone should have an opportunity to gain his living by work. [FN228] The idea that a person has an obligation to work was clearly rejected; such a duty might have led to forced labor, reminiscent of the Nazis' and certain countries' abuse of such labor. The right to work includes the concept of free choice of an occupation; the work must be one that a person freely chooses or accepts. [FN229] The scope of this choice is not clear; no determination has been made about how long an individual can refuse offers of employment and still claim the opportunity to work. The right to work, like other rights under this Covenant, is subject to progressive realization. The Covenant does, however, list some specific steps to promote its full realization. These steps include the establishment*46 of technical and vocational guidance and training programs; [FN230] clearly, only skilled workers would be able to choose from among jobs that would provide decent wages. The Covenant then lists several ambitious goals: steps should be taken to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. [FN231] The reference to development embraces the economic, social, and cultural development of the individual, as well as the society of which he is a part. [FN232] Full employment is a goal already specified in the U.N. Charter, [FN233] and is important not only domestically but also internationally; low employment leads to economic instability and international crises. The widespread unemployment in Germany in the 1930's enabled Hitler to achieve power and to threaten the destruction of the world and modern civilization. This must be avoided in the future. Employment should also be productive, in that it should contribute to the general welfare of the community. States should avoid making work that is artificial and that has no special value. Finally, states should not attempt to achieve the goal of full employment through authoritarian means that would result in abridgment of the individual's freedoms. The society's various goals must be carefully balanced to ensure that the accomplishment of one goal does not destroy another. The Covenant's provision on social security [FN234] is the most succinct of all the provisions. The ILO has adopted a number of instruments on the subject, [FN235] but, in spite of its brevity, the Covenant's provision goes beyond those instruments to a certain extent. It speaks of social security in the broadest terms, to embrace not only social insurance but also other methods of social and economic assistance for the benefit of insecure members of the community. It provides social security to everyone, not just workers. Attempts
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to narrow the application of the principle to workers only were unsuccessful. Similarly rejected were special financing schemes restricted to contributions by workers, or by *47 workers and employers. Instead, each state was allowed to select any financing method it deemed appropriate. [FN236] To offer another example of the Covenant's breadth and flexibility, the Covenant recognizes the right to education and carefully sets out obligations relating to different stages of education: primary, secondary, higher, and fundamental. [FN237] To avoid rigidity, the Covenant does not define these categories of education, thus allowing States Parties flexibility in implementing the provisions. It provides expressly for prompt implementation of the principle of compulsory primary education free of charge for all, and for progressive achievement of free education at higher levels. [FN238] The novel idea of providing international protection and supervision to economic, social, and cultural rights has disturbed scholars more often than statesmen. Almost half of the world's states have accepted the Covenant, and many of them have by now submitted reports for international scrutiny to a specially appointed working group of the Economic and Social Council. [FN239] Most countries have accepted these steps, which seemed revolutionary in the immediate postwar period, as routine; some states that are not even parties to the Covenant have been submitting parallel reports under other instruments, especially the Universal Declaration of Human Rights, [FN240] and the various systems of implementation established by the several specialized agencies of the United Nations. [FN241] Thirteen European states have also accepted parallel obligations under the European Social Charter, approved in Turin in *48 1961. [FN242] Another silent revolution has thus succeeded. IV. THE THIRD GENERATION OF RIGHTS: COLLECTIVE RIGHTS One of the main characteristics of humanity is that human beings are social creatures. Consequently, most individuals belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger communities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights if a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights. A. Recognized Third-Generation Rights 1. The right of self-determination International law has long been concerned with one of the most basic of collective rights: the right of self-determination. Many wars were fought in the name of the principle of selfdetermination, and the international community has often come to the assistance of those who have invoked that principle. The Concert of Europe came to the assistance of Belgium and Greece in the second quarter of the nineteenth century and, in the last quarter of that century, helped various Balkan countries gain independence. [FN243] At the end of the First World War, President Wilson applied the principle of selfdetermination to the countries of Eastern Europe. During the Second World War, the Atlantic Charter, which was endorsed by the United Nations in its 1942 Declaration, promised to respect the right of all peoples to choose the form of government under which they will live, and to have sovereign rights and selfgovernment restored to those who have been forcibly deprived of them. [FN244] Two parts of the concept of self-determination have thus surfaced: internal self-determination, or the right of individuals to select their own government, and external self-determination, or the right to be free from foreign domination. The Charter of the United Nations *49 emphasizes that friendly relations among nations shall be based on respect for the principle of equal rights and self-determination of peoples. [FN245] The General Assembly it-
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self decided that both Covenants should contain an article on self-determination. The final version of article 1(1) of both Covenants begins with this phrase: All peoples have the right to self-determination, and concludes with this sentence: By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. [FN246] In contrast to the Charter, which speaks of the principle of self-determination, the Covenant speaks of a right, thus leading to a controversy about whether self-determination is a political principle or a legal right. The partisans of the political principle view construe self-determination as a nebulous term, arguing that more precise definition would be required in order to transform it into a right. According to this view, the principle of self-determination would also have to be reconciled with other political principles in the Charter, especially those relating to the maintenance of international peace and security. In particular, does self-determination mean local autonomy, self-government, right to secession, or right to independence? The word people also raises questions. It is different from nation? Is a minority a people? Those who consider self-determination to be a collective right assert that, without the right, enither a people nor the individual members thereof can be considered free. In the eyes of these proponents, the denial of selfdetermination as a right is more likely to endanger international peace than its recognition as a right. An initial attempt was made to confine the right of self-determination to the peoples of the nonself-governing territories, which belong to colonial empires that are the objects of specific obligations under article 1(3) of both Covenants [FN247] as well as under articles 73 and 76 of the U.N. Charter. [FN248]. Nevertheless, the final text of the Covenant applies to all peoples, whether they live in independent States or in non-self-governing*50 or trust territories. [FN249] The principle has also been claimed to apply to countries that, although historically independent, recently have been deprived of their independence and have been incorporated into another state. Estonia, Latvia, and Lithuania frequently have been mentioned in this regard. Others have claimed that the Ukrainians, members of the largest not yet independent nation, should be entitled to self-determination, as should the rapidly growing Moslem republics of Soviet Central Asia. At the same time, there is great reluctance to extend this principle to minorities. Application of the principle of self-determination to minorities would raise a more complex problem, because it would represent a threat to the unity of nations. The problem is one which the Covenant on Civil and Political Rights solved by granting special rights to members of minorities rather than to the groups as a whole. [FN250] The Covenants clearly endorse not only the right of external self-determination, but also the right of internal self-determination: the right of a people to establish its own political institutions, to develop its own economic resources, and to direct its own social and cultural evolution. A people that cannot freely determine its political status can hardly determine its economic, social, and cultural status. A people should be free both from interference by other peoples or states and from deprivation of its right to self-determination by a tyrant or dictator. The right of self-determination could be construed to assure the right to exercise freely all other rights, particularly the Covenants' political and economic rights. Every state has a concomitant obligation to respect every other state's right of self-determination and to refrain from interference in the internal affairs of a state in any way that might impede the right of a people to control its own destiny. Article 1(2) of the two Covenants contains a provision that several Western States strongly opposed. The article provides that all peoples may freely dispose of their natural wealth and resources. [FN251] Although this was to be accomplished without prejudice to any obligations arising out of international economic co-operation, based upon the principle*51 of mutual benefit, and international law, [FN252] some countries viewed this provision as directed against foreign investments in the mining of natural resources, possibly allowing expropriation without compensation and interfering with important contractual obligations. In reply, the provision's proponents identified as elementary the principle that a people should be the master of its own natural wealth. The main purpose of the provision was to ensure, in the words of the Covenants, that i n no case may a people be deprived of its own means of subsistence. [FN253] Regardless of
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the merits of these contentions, it suffices to note here that the inclusion of article 1(2) of the Covenants was the outcome of merely one skirmish in the continuing battle for change in the international economic order. The relation of article 1(2) to human rights, although important, is incidental. This special problem aside, the principle or right of self-determination clearly has been one of the most influential legal and political doctrines of this century and had led to a revolutionary transformation of political relationships throughout the world, including the emergence of more than a hundred new states. This transformation has changed completely the balance of power in the international community, because many international institutions function on a one-state, one-vote basis. One of the first consequences was the establishment, during the first U.N. Conference on Trade and Development, of the so-called Group of 77, a joining of forces by the new states and a group of Latin American countries. [FN254] By 1980 this group included 118 states. [FN255] It has more than a two-thirds majority in most international institutions and has used this influence on many issues, including human rights questions of special concern to the group. [FN256] Following a period of rebellion against the existing system of international law, reminiscent of the Soviet Union's attitude in the early days of its existence, the new states have reconsidered their initial position; they have shown a willingness to accept most rules of the old and new international law. In some areas of international economic law, however, the new states cling to the more than one-hundred-year-old opposition of the Latin American states to rules originally imposed on them by the major powers. This negative attitude does not extend to human rights. It is especially gratifying to *52 note that among the parties to the two Covenants, more than fifty are members of the Group of 77. These states have become equal partners in one of the greatest adventures of the human spirit, the promotion of universal acceptance of the basic principles of human rights. The self-determination revolution was one of the first results of the human rights revolution. Now, the beneficiaries of the former are supporting the broader human rights revolution. Although noisy disturbances may have been occurring in other areas, the last General Assembly found time to add a new and important instrument to the common treasury of human rights: the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. [FN257] Pressure from the new countries forced some states to abandon their long-drawn opposition to that instrument; because of the insistence Group of 77 on the need for consensus the declaration was finally adopted without a vote. [FN258] This demonstrates that revolutions need not be destructive. On the contrary, revolutions in the human rights field have proven in practice to be constructive and forward looking. 2. The right to development One facet of the right of self-determination is the right of a people to freely pursue their economic, social and cultural development. [FN259] The most recent regional human rights instrument, the African Charter on Human and Peoples' Rights, [FN260] rephrases this right slightly to read: 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. [FN261] In addition, the Affrican Charter proclaims that states have the duty to ensure, individually or collectively, the exercise of the right to development. [FN262] The right to development can be traced to the 1944 Declaration of Philadelphia, which was incorporated into the ILO Constitution of 1946. [FN263] That Declaration affirmed the following principle: All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity. [FN264] *53 The U.N. Charter requires members of the United Nations to promote, as an ensemble, higher standards of living, full employment, and conditions of economic and social progress and development. [FN265] The Universal Declaration gives this idea another twist by providing that everyone is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the
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free development of his personality. [FN266] The Universal Declaration adds: Everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized. [FN267] The right to development also has been connected with the right to life; the argument is that because everyone is entitled to a decent life and not merely to the right to exist, the realization of economic, social, and cultural rights must be essential to an individual's physical and intellectual well-being. [FN268] As early as 1968, the International Conference on Human Rights pointed out in the Teheran Declaration that t he achievement of lasting progress in the achievement of human rights is dependent upon sound and effective national and international policies of social and economic development. [FN269] The special importance of the right to development was first brought to the consciousness of governments and scholars by Judge Keba M'Baye, Chief Justice of the Supreme Court of Senegal, an active member of the U.N. Commission on Human Rights and a recently elected member of the International Court of Justice. In his many writings and speeches since 1972, Judge M'Baye has strongly advocated the recognition of the right to development as a human right. The right to development must be a human right, he has argued, because it is essential to the exercise of other human rights. [FN270] Due to his influence, UNESCO's 1978 Declaration on Race and Racial Prejudice [FN271] included the following broad definition of the right to development: the right of every human being and group to full development . . . implies equal access to the means of personal and collective advancement and fulfillment in a climate*54 of respect for the values of civilizations and cultures, both national and world-wide. [FN272] A U.N. working group of governmental experts, after studying the various documents on the subject, came to the conclusion that the right to development has both a collective and an individual dimension. [FN273] The holders of the collective right to development are peoples and states. Each group of states, especially the developed states, should act to make possible the enjoyment of the right by all states. [FN274] The basic purpose of the development right in its individual dimension is integral development, that is, satisfaction of a number of basic or fundamental needs' of the individual. [FN275] According to another view, the right to development involves far more than the mere satisfaction of basic needs; [FN276] its objective is to establish conditions of equality of opportunity among all peoples, with a view to the fulfillment of the human person. [FN277] Consisitent with that opinion, the individual right to development may be considered a multidimensional, composite right, covering all civil, political, economic, social, and cultural rights necessary for the full development of the individual and the protection of his dignity. [FN278] In any case, the two dimensions of the right to development are deemed to be interdependent, and can benefit from contemporaneous relization. [FN279] This can be achieved if both national and international means can be used. [FN280] Eleanor Roosevelt, chairperson of the Drafting Committee for the Universal Declaration, noted a special need for active assistance on a global scale. She pointed out, in particular, that one of the crucial phrases in article 22 of the Declaration was that human rights could be realized only jointly, through national effort and international co-operation. [FN281] With international assistance, each country may progress more rapidly than it would otherwise. There are, however, some additional domestic obstacles to development. According to the group of experts, these obstacles are the failure to involve all segments of the population in the development process, unequal distribution of the fruits of development, absence of political *55 democracy, and an inefficient economic system. [FN282] In spite of these obstacles, the experts agreed that the demands of development do not justify derogation from fundamental human rights: [T]here can be no development without respect for the fundamental rights of the individual[;] a national development strategy that rejects civil, political, economic, social and cultural rights would be the very negation of development . . .. [T]he promotion of economic, social and cultural rights can in no case justify violations of civil and political rights or any delay in their exercise. [FN283]
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What is interesting about the group's discussion is the shift from consideration of the right to development as primarily an interstate concept, designed principally to justify demands for economic and technical assistance, to a conceptualization of development as a right in which the individual can also share. As the General Assembly pointed out in 1979, the right to development is a human right and . . . equality of opportunity for development is as much a prerogative of nations as of individuals within nations. [FN284] A distinction may be made between the right to development and the right to live in a developing society. [FN285] The first is usually a right of peoples, whereas the second is more clearly a right of individuals. From an individual's point of view, every society is or should be constantly developing rather than stagnating or retrogressing. If development is curtailed, the rights of individuals are also likely to be curtailed. Development should not be considered in purely economic terms. [FN286] In recent years there has been an appropriately increased emphasis on social factors. In his study of the subject in 1979, [FN287] the Secretary General of the United Nations concluded that the following human rights elements are a part of the concept of development: (i) The realization of the potentialities of the human person in harmony with the community should be seen as the central purpose of development; *56 (ii) The human person should be regarded as the subject and not the object of the development process; (iii) Development requires the satisfaction of both material and non-material basic needs; (iv) Respect for human rights is fundamental to the development process; (v) The human person must be able to participate fully in shaping his own reality; (vi) Respect for the principles of equality and non-discrimination is essential; and (vii) The achievement of a degree of individual and collective self-reliance must be an integral part of the process. [FN288] The right to development thus requires careful balancing of the interests of the community and of individuals. A healthy regard for the rights of the individual is indispensable for a state's success in pursuing its right to development. At the same time it has been said that the right to development is for a people what human rights are for an individual. It represents the transposition of human rights to the level of the international community. [FN289] In concluding this section, a quotation from President Julius Nyerere of Tanzania is appropriate: Freedom and development are as completely linked together as are chickens and eggs. Without chickens you get no eggs; and without eggs you soon have no chickens. Similarly, without freedom you get no development, and without development you very soon lose your freedom. [FN290] 3. The right of peace Analogously, one can say that without peace there can be no human rights. Wars not only result in great loss of human life; they are also inimical to human rights. Even preparation for war often results in the curtailment of human rights. The converse is also true: a country that grossly violates human rights is more likely to start a war than a country in which freedom flourishes. [FN291] Alternately, gross violations of human *57 rights in a country can lead to military intervention by another country; such intervention can easily escalate into a larger war. It is not surprising, therefore, that the right to peace is another of the third-generation collective rights. [FN292] In 1976, the U.N. Commission on Human Rights pointed out that everyone has the right to live in conditions of international peace and security and fully to enjoy economic, social and cultural rights and civil and political rights. [FN293] The Commission added that unqualified respect for and the promotion of human rights and fundamental freedoms require the existence of international peace and security. [FN294] It also noted that flagrant and massive violations of human rights, including economic, social and cultural rights, may lead the world into armed conflicts. [FN295] According to its recommendation, all states should make an effort to create the most favorable conditions for the maintenance of international peace and security through respect for and the promotion of human rights and fundamental freedoms, including the right to
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life, liberty and security of person. [FN296] The Commission's resolution encountered strong opposition from several Western powers, including France, the United Kingdom, and the United States. The opposition relied on several grounds for its objection. First, the Commission was unjustified in raising the right to life to a position of paramount importance, over and above all other human rights. Moreover, although international peace and security were important for the promotion of human rights, the Commission should have stressed, conversely, that violations of human rights, including widespread torture and oppression of individual liberties, were among the major causes of tension, violence, and wars. Furthermore, the dissenters argued, many heroic people have sacrificed their lives in the defense of human freedoms. Finally, the Commission should be concerned with human rights rather than peace, and should leave the latter issue to the Security Council and the General Assembly. [FN297] Others characterized wars of aggression as the worst kind of violation of all fundamental rights and freedoms, and above all of the right to life itself; in order to protect human rights, the Commission should emphasize measures that would promote international peace and security. [FN298] The appropriateness*58 of the reference in the resolution's preamble to the Helsinki Final Act [FN299] stirred additional controversy. [FN300] The resolution was adopted by a divided vote, twenty-two to seven, with one abstention. [FN301] This was not an auspicious beginning for an important new principle. At the next session of the Commission, the debate continued in connection with a proposal relating to the right to development. [FN302] Several speakers considered the right to development to be closely linked with the right to peace, and called for the two rights to be studied jointly. [FN303] They pointed out that disarmament should be promoted and dtente should be maintained and increased so that the vast resources now being used in the arms race might be diverted towards economic and social progress. [FN304] Others, agreeing in principle, nevertheless questioned the existence of an individual right to peace as an established principle of international law. [FN305] The resolution, mentioning the right to peace as an object for a study, [FN306] was adopted without a vote, although one delegation reserved its position on the relevant paragraph of the resolution. [FN307] When the Secretary General presented his study to the Commission on Human Rights in 1979, [FN308] the pendulum shifted further in the direction of acceptance of the right to peace; a number of speakers agreed that the right to peace is fundamental to the full enjoyment of all human rights. [FN309] The Commission, without a vote, adopted a resolution stating generally that exercise of the right to development implies a reign of peace and the establishment of an international economic order based on respect for human rights. [FN310] The right to peace has been primarily discussed as an individual right, but there is general agreement that any such right necessarily has both individual and collective aspects; as in the case of the right to development, these aspects reinforce one another and are not mutually exclusive. [FN311] The General Assembly confirmed this relationship by *59 reaffirming, in the Declaration on the Preparation of Societies for Life in Peace, [FN312] the right of individuals, States and all mankind to life in peace [FN313] and by asking states to observe the principle that Every nation and every human being, regardless of race, conscience, language or sex has the inherent right to life in peace. Respect for that right, as well as for the other human rights, in the common interest of all mankind and an indispensable condition of advancement of all nations, large and small, in all fields. [FN314] This resolution was adopted by 138 votes, with only Israel and the United States abstaining, due primarily to concern that the Declaration's prohibition of propaganda for wars of aggression implied a threat to the freedom of speech. [FN315] The African Charter on Human Rights and Peoples' Rights, [FN316] in contrast, mentions the right to peace only as a right of the peoples. [FN317] It does, however, add another dimension to that right, namely
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the right to nationalthat is, domesticpeace. The African Charter provides that all peoples shall have the right to national and international peace and security. [FN318] Whatever the formulation, the main beneficiaries of the observance of the right to peace would be individuals living in the countries that accept and abide by the right. Undoubtedly, if mankind wants to promote human rights and social and economic progress, it must secure peace on earth. Recognition of a right to peaceor, preferably, a right to live in peace, both individual and collectiveis a step in the right direction. 4. Other third-generation rights The African Charter proclaims: All peoples shall have the right to a general satisfactory environment favourable to their development. [FN319] Similarly, a UNESCO colloquium on new human rights, held in Mexico City in 1980, discussed the right to a healthy and ecologically balanced*60 environment. [FN320] This idea may be traced to the following basic principle of the 1972 Stockholm Declaration on the Human Environment: [FN321] Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations . . .. [FN322] This principle can be traced to an even more explicit proposal by the United States: Every human being has a right to a healthful and safe environment, including air, water and earth, and to food and other material necessities, all of which should be sufficiently free from contamination and other elements which detract from the health or well-being of man. [FN323] One may also note that the Universal Declaration of Human Rights, in a similar spirit, but without express mention of the environment, proclaimed that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing [and] housing. [FN324] There is a similar provision in the Covenant on Economic, Social and Cultural Rights. [FN325] Other third-generation rights have been identified. One recent writer has mentioned the right to food; the right to benefit from or share in the common heritage of mankind; the right to communicate, that is, to have access to international means of communication, to participate in their operation, and to ensure two-way flow of information; the right to humanitarian assistance; the right to the satisfaction of basic needs; and the right to disarmament. [FN326] Some of these rights are perhaps only a variation of other such rights as the right to an adequate standard of living, to freedom of information, or to peace; others present intriguing new problems. Several of them, initially considered to be peoples' rights, are now generally recognized as having a crucial individual dimension. Jorge Castaeda, the Secretary of State for External Affairs of Mexico, recently stated that the phenomena and processes with which we are concerned can only be approached in a perspective that has man *61 himself as its focal point. [FN327] B. Issues Raised by the Recognition of Collective Rights Taken together, the third generation of human rights raises difficult issues. In the 1950's, the concept of and need for economic, social, and cultural rights were heatedly debated; today, the opponents of the new rights contend in a similar manner that the third-generation rights are not really legal rights but are either political or social principles, or, at best, moral rights, without any legal force. Proponents contend that the new rights have already become a part of customary international law or of the law of the United Nations, because they state obligations that can easily be derived from the Charter, the Universal Declaration, or the Covenants. By making individuals as well as peoples the subjects of these new rights, international law reaches a new dimension, allowing entities other than states to claim rights in the international arena. The new group of human rights has been given a variety of names: the third generation of human rights; rights of solidarity; collective rights, or rights of every human being and of all human beings taken collect-
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ively; synthetic rights; consolidated rights; communal rights; rights of the peoples, or populist or popular rights; joint rights of individuals and other groups, or rights exercised by individuals separately and jointly; and new rights or new dimensions of existing rights. [FN328] Without delving into semantics, it is obvious that each phrase has, or could have, different connotations and consequences. For example, the author of the phrase third generation of human rights, Karel Vasak of UNESCO, views these rights as infus ing the human dimension into areas where it has all too often been missing having been left to the State or States. [FN329] Such rights can be realized only through the concerted efforts of all the actors on the social scene: the individual, the State, public and private bodies, and the international community. [FN330] Vasak also has pointed out that the first two generations of human rights were designed to achieve the first two of the three guiding principles of the French Revolutionlibert and galitwhile the third generation is predicated on brotherhoodfraternit. According to Vasak, the new rights, even more than the rights belonging to the first two categories, are based on the sense of solidarity, without which the chief concerns of the world community, such as peace, development and environment, *62 cannot be realized. [FN331] The very terminology used, especially the word generation, has created some problems. To many persons, the word connotes a succeeding generation replacing on older one, rather than generations existing convivially vivially together. Some of the hostility to the economic, social, and cultural rights can be traced to insistence by several proponents that these new rights should have precedence over the old ones, that they were more important than the old rights they supposedly replaced, and that the old rights would have to wait in line until the basic needs represented by the new rights had been satisfied properly. Much time passed before the two categoriescivil and political rights on the one hand, and economic, social, and cultural rights on the other handwere considered to be interdependent and complementary: achievement of the rights in either category can be accomplished only with the help of the rights in the other category, and, similarly, failure in one area is likely to bring deterioration in the other. The same problem arises now regarding the third category of rights. Proponents claim that if the new rights are not soon achieved, our planet will become uninhabitable; there will be no human rights or even human beings about which to worry. [FN332] Opponents argue that humanity has survived for many centuries without the new rights, that these rights are not likely to be implemented in any reasonable way in the foreseeable future, and that these new rights merely cause confusion because they are vague and exaggerated in scope. It has also been said that claims for new rights distort the meaning of human rights by pretending that all objects of human desire are rights' which can be had, if not for the asking then at least for the demanding, especially if one talks of such rights' as rights to a happy childhood, to self-fulfillment, to development. [FN333] Finally, some dissenters argue that as long as the law of human rights is in turmoil, states cannot be expected to agree on implementation measures and, furthermore, that those states that want to avoid the strengthening of implementation measures might be inclined, as a diversion to press for drastic changes in and additions to the law. CONCLUSION Whatever the merits of the contentions of those who disparage the new rights, two points must be made; one relates to the interdependence *63 of all human rights, the other concerns the present importance of these rights. With respect to the first point, it must be noted that various international institutions have specially emphasized the interdependence, complementarity, and indivisibility of human rights. [FN334] By 1968, the Teheran International Conference on Human Rights had already stated in its Declaration that [s]ince 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 impossible. The achievement of lasting progress in the implementation of human rights is dependent on sound and ef-
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fective national and international policies of economic development. [FN335] In a similar spirit the crucial 1977 General Assembly Resolution 32/130 [FN336] on alternative approaches to the improvement of United Nations effectiveness in promoting human rights noted, inter alia: (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; (d) Consequently, human rights questions should be examined globally, taking into account 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 development and well-being of the society . . .. [FN337] It should not surprise anyone if the truth about the current relevance of the new human rights were somewhere between the two extreme views. Like the economic, social, and cultural rights, the new rights, even if not immediately attainable, establish new goals that can be achieved progressively, by one laborious step after another. They are vast and overwhelming, but so are our problems. The damage to humanity that might be inflicted by a nuclear war or an environmental catastrophe is almost beyond comprehension; we need to grasp any tool that is available to stem an engulfing tide that is of horrifying proportions. Perhaps these new concepts can be the equivalent of the Dutch boy's finger that at the last minute plugged the hole in the dike. We are in a desperate situation; we need to be brave. As Virgil said, audentes *64 fortuna juvat: fortune helps the daring. In the field of human rights we have had two successful revolutions; we should have the courage to begin a third.
[FNa] Woodruff Professor of International Law, University of Georgia School of Law; Bemis Professor of International Law, Emeritus, Harvard Law School. LL.M., 1935, John Casimir University, Lwow, Poland; LL.M., 1940, S.J.D. 1958, Harvard University. This Article is based on a series of lectures delivered by the author at the Collge de France in June 1982. The staff and editors of the AMERICAN UNIVERSITY LAW REVIEW have provided supplementary footnotes for this Article. [FN1]. Concerning private reprisals, see Clark, The English Practice with Regard to Reprisals by Private Persons, 27 AM. J. INT'L L. 694 (1933). See also E. COLBERT, RETALIATION IN INTERNATIONAL LAW 9-50 (1948); A. HINDMARSH, FORCE IN PEACE 43-56 (1933). [FN2]. See R. DARESTE, NOUVELLES ETUDES D'HISTOIRE DU DROIT 40-47 (1902). [FN3]. L. SOHN & T. BUERGENTHAL, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 32 (1973). The treaty between Benevent and Naples provided that an aggrieved Benevent citizen must twice demand, and be refused, just relief before Neapolitans could be subjected to reprisals. Even them, reprisals were limited to goods found within Benevent territory, unless insufficient goods could be found to secure justice. Similar provisions can be found in the treaty of 880 between Charles III and Venice and in the treaty of 888 between Berengarius I and Venice. Id. [FN4]. Id. at 39-40. The dispute concerned Venezuela's expulsion of two groups of Boston merchants who were gathering guano on the island and Venezuela's subsequent claim of ownership to the island. Prior to the merchants' arrival, the islands had been uninhabited, physically unclaimed by any nation, and thought to be valueless. See 8 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 144-48 (H. Miller ed. 1948). In the convention for settlement of the Aves Islands claims, signed at Valencia on January 14, 1859, Venezuela agreed to pay $130,000 in compensation for losses and damages sustained by the merchants. Id. at 137-39. See 17 DIPLOMATIC CORRESPONDENCE OF THE UNITED
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STATES, INTER-AMERICAN AFFAIRS, 1831-1860, at 487-521 (W. Manning ed. 1939) (collection of U.S. diplomatic correspondence regarding complaint and settlement thereof). [FN5]. See R. PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW 37-41 (3d ed. 1885); J. RIDLEY, LORD PALMERSTON 370-88 (1970). [FN6]. See Venezuelan Preferential Claims Case (Ger., Gr. Brit., Italy v. Venez.), Hague Ct. Rep. (Scott) 55 (Perm. Ct. Arb. 1904) (court held that blockading powers had preference over other creditor-powers in claims against Venezuela). One commentator noted, however, that it is difficult to sustain a decision which recognizes that by the exercise of force one may gain a legitimate advantage over those who resort . . . to peace. J. RALSTON, INTERNATIONAL ARBITRATION FROM ATHENS TO LOCARNO 268 (1929). The Venezuelan Preferential Case merely determined that the blockading powers would be given preference over other creditor-nations. Determinations of the validity and amount of the claims by all 10 nations involved were made by commissions established by a series of protocols into which Venezuela and each of the creditor-nations had entered. See id. 176, at 221-24 (brief discussion of events leading to protocols and subsequent arbitration); A. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS, 1794-1970, at 261-71 (1972) (contains information regarding individual protocols). For statements of the United States' viewpoint and policy, see THE VENEZUELAN ARBITRATION BEFORE THE HAGUE TRIBUNAL 1903, at 11-143, 423-55, 931-37, 111-77 (G.P.O. 1905) (compilation of documents from proceedings of the Hague Tribunal under May 7, 1903 protocols between, inter alia, the United States and Venezuela). [FN7]. Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J., ser. A, No. 2, at 12 (Judgment of Aug. 30). [FN8]. Id. [FN9]. Interhandel (Switz. v. U.S.), 1959 I.C.J. 6, 27 (Preliminary Objections Judgment of Mar. 21) (because of Swiss company's failure to exhaust U.S. judicial remedies, court dismissed claim brought by Swiss government on behalf of company). [FN10]. See L. GILES, THE BOOK OF MENCIUS 35 (1942); D. LAU, MENCIUS 69 (1970). [FN11]. E. VATTEL, THE LAW OF NATIONS bk. II, 56, at 62 (London 1758), reprinted in 3 THE CLASSICS OF INTERNATIONAL LAW 134 (J. Scott ed. 1916). [FN12]. A. TIBAWI, A MODERN HISTORY OF SYRIA 121-33 (1969). See also L. SOHN & T. BUERGENTHAL, supra note 3, at 159; see generally id. at 143-78 (collection of correspondence concerning the massacres and subsequent intervention). [FN13]. Id. at 178-79. [FN14]. See W. HALL, A TREATISE ON INTERNATIONAL LAW 302-09 (4th ed. 1895); E. STOWELL, INTERVENTION IN INTERNATIONAL LAW 53-62 (1921). [FN15]. Letter from Georges Clemenceau to Ignace Paderewski (June 24, 1919) (letter accompanying the draft of the Treaty between the Allied and Associated Powers and Poland Concerning Protection of Minoritics), reprinted in L. SOHN & T. BUERGENTHAL, supra note 3, at 214. [FN16]. Cf. L. SOHN & T. BUERGENTHAL, supra note 3, at 218-19 (according to a report presented to the Council of the League, minorities treaties were not meant to set out universal governmental obligations regarding general principles of religious toleration or general principles for the government of alien people, but rather to deal with local problems in certain specified districts of Europe); 1 M. TARDU, HUMAN
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RIGHTS: THE INTERNATIONAL PETITION SYSTEM 14 (1979) (under League of Nations Mandate, well-being and development of native populations of former German and Ottoman dependent territories were considered sacred trusts and placed under control of Allied powers); E. VIERDAG, THE CONCEPT OF DISCRIMINATION IN INTERNATIONAL LAW 141 (1973) (Allied and Associated Powers' recognition of a number of territories as independent states was subject to territories' acceptance of obligations for minorities within their jurisdiction). See generally J. STONE, INTERNATIONAL GUARANTEES OF MINORITY RIGHTS (1932) (authoritative explanation of form and substance of League of Nations minority protection system). Nazi Germany took advantage of the minority protection system by inciting German-speaking minorities in other nations. See, e.g., M. TARDU, supra, at 44; Humphrey, The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, 62 AM. J. INT'L L. 869, 870 (1968). The German atrocities influenced the formation of a new system for the protection of human rights. See A. RUSSO, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 32 (1971) (nations stunned by the atrocities committed by totalitarian nations realized that protection of individual freedoms could no longer be left to sole discretion of states). [FN17]. See Legal Validity of the Undertakings Concerning Minorities, 6 U.N. ESCOR at 1, 36, 38, 70, 71, U.N. Doc. E/CN. 4/367 (1950), cited in L. SOHN & T. BUERGENTHAL, supra note 3, at 303-04 (study concluded that League of Nations' system of minority protections should be considered to have expired, and most national obligations thereunder to have terminated). See also 1 M. TARDU, supra note 16, at 31 (minorities' treaties regarded as obsolete and therefore not renewed). [FN18]. The contemporary trend is to encourage the assimilation of minorities and to concentrate on prevention of discrimination. Humphrey, supra note 16, at 870. Support for this form of protection was well expressed by representatives from a number of nations in 1960, when the U.N. General Assembly's Special Political Committee debated a complaint that Austria had filed against Italy in protest of the latter's treatment of a German-speaking population in the Province of Bolzano. The delegates of several nations opposed suggestions that a minority protection system similar to that employed under the League of Nations be established. See M. MOSKOWITZ, THE POLITICS AND DYNAMICS OF HUMAN RIGHTS 163-65 (1968) (collection of excerpts from representatives' speeches). See generally E. VIERDAG, supra note 16, at 148-61 (discussing protection of minorities under the United Nations); M. MOSKOWITZ, supra, at 155-73 (rationales for U.N.'s nondiscrimination approach); I. CLAUDE, NATIONAL MINORITIES: AN INTERNATIONAL PROBLEM 203-13 (1955) (choice between bilateral agreements or internationalization). [FN19]. U.N. CHARTER art. 2, para. 7 states: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Member to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. [FN20]. See Ermacora, Human Rights and Domestic Jurisdiction, 124 RECUEIL DES COURS 375, 436 (1968) (principles of nonintervention not applicable in cases of gross or consistent patterns of violations because such violations are not essentially within the domestic jurisdiction of states); Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203, 240 (1974) (U.N. General Assembly has interpreted article 2(7) of the Charter as allowing intervention in the internal affairs of a state in cases of flagrant violations of human rights or the provisions of the Charter); cf. McDougal & Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AM. J. INT'L L. 1, 18 (1969) (international peace and security and the protection of human rights are inescapably interdependent; impact of flagrant deprivations of basic human rights does not stop within territorial boundaries in which deprivation occurred). Nevertheless, the United Nations rarely has used sanctions. For a review of cases in which economic sanctions have been used, see R. LILLICH &
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R. NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW AND POLICY 415-20 (1979). Sanctions against Rhodesia and South Africa are the only examples of full-scale application of such sanctions by the United Nations. See id. at 388-482 (full discussion of background and effect of sanctions). [FN21]. Under the auspices of the Organization of African Unity (OAU), Zaire, Nigeria, Senegal, Guinea, Benin, and Togo provided troops to be interposed between forces of the official government, led by President Goukouni Oueddie, and rebel forces, led by former defense minister Hissene Habu. The OAU forces replaced Libyan troops, which had arrived eleven months earlier. Wash. Post, Nov. 28, 1981, at A24, col. 3; Wash. Post, Nov. 16, 1981, at A22, col. 3. [FN22]. Compare A.J. THOMAS & A.V.W. THOMAS, NON-INTERVENTION 312 (1956) (only nonforceful measures may be used by an individual state to protect its nationals in other states) and Fonteyne, supra note 20, at 242 (classical view of U.N. Charter interprets article 2(4), prohibiting threat or use of force against the territorial integrity or political independence of any state, to encompass entire range of possible situations) with Lillich, Intervention to Protect Human Rights, 15 McGILL L.J. 205, 216 (1969) (pending establishment of effective machinery on international level to govern use of force in human rights situations, a limited right of forcible self-help exists despite provisions in articles 2(4) and 2(7) of the Charter) and Nanda, The United States' Action in the 1965 Dominican Crisis: Impact on World Order (pt. 1), 43 DEN. L.J. 439, 458 (1966) (state should be allowed to intervene for the protection of its nationals in appropriate situations). [FN23]. See Fonteyne, supra note 20, at 251 (some writers endorse argument that self-help to protect one's own nationals can be deemed included within the inherent right of self-defense retained by article 51). [FN24]. The relevant section states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. U.N. CHARTER art. 2, para. 4. [FN25]. E.g., Reisman, Memorandum Upon Humanitarian Intervention to Protect the Ibos 15-16 (unpublished paper written with the collaboration of Professor McDougal, 1968), cited in Lillich, supra note 22, at 212 n.36 (1969). [FN26]. Cf. U.N. CHARTER art. 1, para. 3, which states: The Purposes of the United Nations are, [inter alia,] . . . [t]o achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion . . .. [FN27]. G.A. Res. 2625(XXV), 25 U.N. GAOR Supp. (No. 28) at 121, U.N. Doc. A/8028 (1970). [FN28]. Cf. Fonteyne, Forcible Self-Help by States to Protect Human Rights: Recent Views from the United Nations, in HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 197, 216 (R. Lillich ed. 1973) (few representatives on the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States explicitly claimed that intervention to remedy gross violations of human rights was lawful as an implicit exception to Charter principles prohibiting use of force and intervention). [FN29]. The International Military Tribunal at Nuremberg (Nrnberg), November 14, 1946, and the International Military Tribunal for the Far East, Tokyo, February 15, 1946 to November 12, 1948, are the bestknown war crimes tribunals. See generally The Nurnberg Trial, 6 F.R.D. 69 (1946); L. SOHN, CASES ON UNITED NATIONS LAW 898-967 (1st ed. 1956) (excerpts from the official text of the main judgment and of the separate and dissenting opinions in the Tokyo trial). For a bibliography of war crimes trials, see J.
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LEWIS, UNCERTAIN JUDGMENT: A BIBLIOGRAPHY OF WAR CRIMES TRIALS (1979). [FN30]. Concerning the defense of having acted on behalf of the state, the Nuremberg court pointed out that [c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The Nurnberg Trial, 6 F.R.D. 69, 110 (1946). The court then cited article 7 of the Charter annexed to the Agreement establishing the Nuremberg Tribunal, which declared, The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment. Id. As to the defense of following orders, the court cited article 8 of the Charter, which stated: The fact that the defendant acts pursuant to orders of his Government or a superior shall not free him from responsibility, but may be considered in mitigation of punishment. Id. The Tokyo court was in complete accord with the Nuremberg Tribunal's findings on these issues. L. SOHN, supra note 29, at 906. [FN31]. The Nurnberg Trial, 6 F.R.D. 69, 110 (1946). [FN32]. G.A. Res. 95, U.N. Doc. A/64/Add.1 (1947), reprinted in 1 UNITED NATIONS RESOLUTIONS ser. 1, at 175 (Djonovich ed. 1972). [FN33]. Report of the International Law Commission to the General Assembly, 4 U.N. GAOR Supp. (No. 10) at 1, U.N. Doc. A/925 (1949). [FN34]. Definition of Aggression, G.A. Res. 3314, 29 U.N. GAOR Supp. (No. 31) at 142, U.N. Doc. A/9631 (1974). Article 1 defines aggression as the use of armed force by a state against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in the Definition. Id. art. 1. For a comprehensive history of the preparation of this document, see B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION (1975). For a critical discussion of this definition, see Stone, Holes and Loopholes in the Definition of Aggression, 71 AM. J. INT'L L. 224 (1977). [FN35]. See, e.g., G.A. Res. 36/759, U.N. Doc. A/RES./36/759 (1981); International Convention Against the Taking of Hostages, G.A. Res. 34/146, 34 U.N. GAOR Supp. (No. 46) at 245 U.N. Doc. A/34/46 (1980); International Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068, 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, G.A. Res. 3166, 27 U.N. GAOR Supp. (No. 30), U.N. Doc. A/8730 (1973); Declaration on the Prevention of Nuclear Catastrophe, G.A. Res. 36/100, U.N. Doc. A/RES./36/100 (1981) (statesmen and states that first resort to the use of nuclear weapons will be committing the gravest crime against humanity). [FN36]. See, e.g., U.N. CHARTER art. 1, para. 3; id. art. 55. The U.N. Charter gives to the Economic and Social Council the responsibility for making recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. Id. art. 62, para. 2. See also id. art. 13, para. 1(b). [FN37]. Approved Dec. 10, 1948, G.A. Res. 217A, U.N. Doc. A/810 at 56 (1948) [hereinafter cited as Universal Declaration]. Among the rights included in the Universal Declaration are the following: the right to life, liberty, and security of person (art. 3); the right to be free from arbitrary arrest, detention, or exile (art. 9); the right to marry and found a family (art. 16); the right to freedom of thought, conscience, and religion (art. 18); and the right to education (art. 26). [FN38]. Entered into force Mar. 23, 1976, G.A. Res. 2200A, 21, U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) [hereinafter cited as Covenant on Civil and Political Rights]. Part II of this Article dis-
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cusses in detail the Covenant on Civil and Political Rights. [FN39]. Entered into force Jan. 3, 1976, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.A/6316 (1966) [hereinafter cited as Covenant on Economic, Social and Cultural Rights]. Part III of this Article discusses in detail the Covenant on Economic, Social and Cultural Rights. This process of elaboration may be illustrated by the development of the right to form trade unions. In 1948, the Universal Declaration confined discussion of this right to a simple statement; Everyone has the right to form and to join trade unions for the protection of his interests. Universal Declaration, supra note 37, art. 23. In 1966, the Covenant on Economic, Social and Cultural Rights gave greater definition to this right. Article 8 of the Covenant declares:(1) The States Parties to the present Covenant undertake to ensure:(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;(b) The right of trade unions to establish national 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 subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. [FN40]. For the text of the documents, see UNITED NATIONS, HUMAN RIGHTS: A COMPILATION OF INTERNATIONAL INSTRUMENTS, U.N. Doc. ST/HR/1/Rev. 1 (1978). See, e.g., Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, U.N. Doc. A/RES/36/55 (1981). [FN41]. See, e.g., C. DICKENS, BLEAK HOUSE (1853). The following passage demonstrates Dickens' dim view of the legal system: This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not givewho does not often givethe warning, Suffer any wrong that can be done you, rather than come here!Id. at 6-7. See also E. ZOLA, GERMINALE (1885). [FN42]. Universal Declaration, supra note 37, preamble. [FN43]. U.N. CHARTER art. 103. [FN44]. Id. art. 55(c). [FN45]. Id. art. 56. [FN46]. Id. preamble. [FN47]. E.S.C. Res. 5(I), 1 U.N. ESCOR Supp. (No. 1) at 163, U.N. Doc. E/1 (1946). [FN48]. See supra note 37. [FN49]. Mrs. Roosevelt was obliged to state on behalf of the United States that the Declaration was not a treaty or international agreement and did not impose legal obligations. 3 U.N. GAOR (pt. 1, 3d Comm.) at 22 (1948).
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[FN50]. See Sohn, A Short History of the United Nations Documents on Human Rights, in COMMISSION TO STUDY THE ORGANIZATION OF PEACE, 18TH REPORT, THE UNITED NATIONS AND HUMAN RIGHTS 39, 68-70 (1968). [FN51]. Id. at 70. [FN52]. Universal Declaration, supra note 37, preamble. [FN53]. G.A. Res. 285(III), U.N. Doc. A/900 (1949). [FN54]. See, e.g., S.C. Res. 182, 18 U.N. SCOR Supp. (Oct.-Dec. 1963) at 103, U.N. Doc. S/5471 (1963). [FN55]. G.A. Res. 1514(XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1960); G.A. Res. 1904(XVIII), 18 U.N. GAOR Supp. (No. 15) at 35, U.N. Doc. A/5515 (1963). [FN56]. 23 U.N. GAOR Supp. (No. 41) at 1, U.N. Doc. A/Conf. 32/41 (1968) [hereinafter cited as Declaration of Teheran]. [FN57]. Id. para. 2. [FN58]. Final Act of the Conference on Security and Cooperation in Europe (Helsinki Final Act), Aug. 1, 1975, 14 INT'L LEGAL MATERIALS 1292 (1975). [FN59]. Id. Pt. 1(a)(VII), at 1295. [FN60]. DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 2 (1789), reprinted in I. BROWNLIE, BASIC DOCUMENTS ON HUMAN RIGHTS 8-10 (1971). [FN61]. J. MARITAIN, THE RIGHTS OF MAN AND NATURAL LAW 65 (D. Anson trans. 1951). See also M. CRANSTON, WHAT ARE HUMAN RIGHTS? 11 (1973) (noting the resurgence of natural law; as a living, as well as an ancient, concept, it is potentially fallacious despite claims that it is binding all over the globe). [FN62]. Universal Declaration, supra note 37, preamble; Covenant on Civil and Political Rights, supra note 38, preamble; Covenant on Economic, Social and Cultural Rights, supra note 39, preamble. [FN63]. G.A. Res. 32/130, 32 U.N. GAOR Supp. (No. 45) at 151, U.N. Doc. A/32/45 (1977). [FN64]. Covenant on Civil and Political Rights, supra note 38, art. 4(1). [FN65]. Id. arts. 6, 7, 8(1)-(2), 11, 15, 16, 18. [FN66]. Id. arts. 12, 14, 17, 18(33), 19, 21, 22. [FN67]. Article 8(1) of the Covenant on Economic, Social and Cultural Rights, supra note 39, provides in part: No restrictions may be placed on the exercise of [the right to form and join trade unions] other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others . . .. [FN68]. Id. art. 4. [FN69]. See infra notes 190-93 and accompanying text. [FN70]. Covenant on Civil and Political Rights, supra note 38, art. 2(2), 3(a). See also UNITED NATIONS,
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UNITED NATIONS ACTION IN THE FIELD OF HUMAN RIGHTS, U.N. Doc. ST/HR/2/Rev. 1 (1980) [hereinafter cited as UNITED NATIONS ACTION]. [FN71]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 2(1), (3). The progressive nature of the Covenant is discussed further at infra notes 194-203 and accompanying text. [FN72]. Covenant on Civil and Political Rights, supra note 38, art. 2(1), (3). [FN73]. Supra notes 64-68 and accompanying text. [FN74]. See supra note 49 and accompanying text. [FN75]. MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT 31 DECEMBER 1981 at 108-34, U.N. Doc. ST/LEC/SER.E/1 (1982) (to date, 71 nations have ratified or have acceded to the Covenant on Economic, Social and Cultural Rights; 69 nations have ratified or have acceded to the Covenant on Civil and Political Rights, and 27 nationas have ratified or have acceded to the Optional Protocol) [hereinafter cited as MULTILATERAL TREATIES]. [FN76]. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter cited as European Convention]. [FN77]. See L. SOHN & T. BUERGENTHAL, supra note 3, at 1008-99, 1104-48 (1973), for a discussion of these two institutions and their work. [FN78]. American Convention on Human Rights, entered into force July 18, 1978, OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1, OAS Treaty Series, No. 36 (1970). For a discussion of human rights in the Americans and the American Convention on Human Rights, see Symposium: The American Convention on Human Rights, 30 AM. U.L. REV. 1-223 (1980). [FN79]. Approved in Nairobi by the Organization of African Unity (July, 1981), reprinted in 21 INT'L LEGAL MATERIALS 59 (1982) as the Banjul Charter on Human and Peoples' Rights, O.A.U. Doc. CAB/ LEG./67/3/Rev.5. For a concise presentation of the history of the drafting of the Charter, see Gittleman, Organization of African Unity: Banjul Charter on Human and Peoples' Rights. Introductory Note, 21 INT'L LEGAL MATERIALS 58 (1982). Although there was initial confusion regarding the official title of the Charter, the authoritative title appears to be, and is hereinafter cited as, the African Charter on Human and Peoples' Rights. [FN80]. Covenant on Civil and Political Rights, supra note 38, art. 5; Covenant on Economic, Social and Cultural Rights, supra note 39, art. 5. [FN81]. This provision is stronger in the Covenant on Civil and and Political Rights than in the Covenant on Economic, Social and Cultural Rights. The former provides that each State Party . . . 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. Covenant on Civil and Political Rights, supra note 38, art. 2(2). The parallel provision in the Covenant on Economic, Social and Cultural Rights, in contrast, is subject to the availability of necessary resources: Each State Party . . . undertakes to take steps, individually and through international assistance and co-operation especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant . . .. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 2(1). [FN82]. Covenant on Civil and Political Rights, supra note 38, art. 2(3).
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[FN83]. Covenant on Civil and Political Rights, supra note 38, art. 40. [FN84]. Id. art. 41(1). [FN85]. Id. [FN86]. MULTILATERAL TREATIES, supra note 75, at 127-28; Report of the Human Rights Committee, 36 U.N. GAOR Supp. (No. 40) at 96-97, U.N. Doc. A/36/40 (1981). The 14 countries accepting article 41 jurisdiction are Austria, Canada, Denmark, Finland, the Federal Republic of Germany, Iceland, Italy, the Netherlands, New Zealand, Norway, Senegal, Sri Lanka, Sweden, and the United Kingdom. Id. [FN87]. Optional Protocol to the International Covenant on Civil and Political Rights, entered into force Mar. 23, 1976, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966) [hereinafter cited as Optional Protocol]. See Report of the Human Rights Committee, supra note 86, at 95-96. The report lists 25 States Parties as of July 31, 1981: Barbados, Canada, Columbia, Costa Rica, Denmark, the Dominican Republic, Ecuador, Finland, Iceland, Italy, Jamaica, Madagascar, Mauritius, the Netherlands, Nicaragua, Norway, Panama, Peru, Senegal, Suriname, Sweden, Trinidad and Tobago, Uruguay, Venezuela, and Zaire. Id. As of December 31, 1981, the Central African Republic and Saint Vincent and the Grenadines had also acceded to the Optional Protocol. MULTILATERAL TREATIES, supra note 75, at 131. [FN88]. Covenant on Civil and Political Rights, supra note 38, art. 41(1)(c); Optional Protocol, supra note 87, art. 2. See also supra note 9 and accompanying text. [FN89]. Covenant on Civil and Political Rights, supra note 38, preamble. [FN90]. See note 87 and accompanying text. [FN91]. The Greek Case, [1969] Y.B. EUR. CONV. ON HUMAN RIGHTS 12 (Eur. Comm'n on Human Rights). See generally L. SOHN & T. BUERGENTHAL, supra note 3, at 1059-90. [FN92]. Covenant on Civil and Political Rights, supra note 38, arts. 6-10, 14-16. One can also include within this group article 11, which proscribes imprisoning an individual merely because he has failed to fulfill a contractual obligation. [FN93]. Id. arts. 12-13. See infra notes 128-53 and accompanying text. [FN94]. Covenant on Civil and Political Rights, supra note 38, art. 17. [FN95]. Id. arts. 23-24. [FN96]. Covenant on Economic, Social and Cultural Rights, supra note 39, arts. 10-14. It may be noted that in a recent case, in response to a petition by two prisoners, the European Commission of Human Rights decided that the United Kingdom's legislation forbidding a prisoner from marrying was contrary to the European Convention, supra note 76. The government of the United Kingdom agreed to present to the Parliament legislation to remove the restriction. U.N. Doc. E/CN.4/1982/1 at 31-33 (1982). The two prisoners, one serving a life sentence, the other a term of years, petitioned the European Commission on Human Rights under article 25 of the Convention, which authorizes such petitions. [FN97]. Covenant on Civil and Political Rights, supra note 38, arts. 18(1), 19, 21, 22, 25. [FN98]. Universal Declaration, supra note 37, art. 17.
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[FN99]. Protocol [No. 1] to the Convention for the Protection of Human Rights and Fundamental Freedoms, March 20, 1952, 213 U.N.T.S. 262 (1955). [FN100]. Id. art. 1. [FN101]. See, e.g., Asian-African Legal Consultative Committee, Principles concerning Admission and Treatment of Aliens, art. 12(1), 4 ASIAN-AFRICAN LEGAL COMM. REP. 49 (1961) (compensation for expropriated property shall be paid in accordance with local laws, regulations and orders'). [FN102]. Covenant on Civil and Political Rights, supra note 38, art. 2(1). Compare id. with U.N. CHARTER art. 1(3) (promotion of human rights without distinction as to race, sex, language or religion). [FN103]. Id. art. 3. [FN104]. Id. art. 26. [FN105]. Id. arts. 14(1), 16. [FN106]. Id. art. 23(4). [FN107]. International Convention on the Elimination of All Forms of Racial Discrimination, supra note 40. [FN108]. See MULTILATERAL TREATIES, supra note 75, at 96-97. The United States is not a party to the Convention; although it signed the Convention, it has neither ratified nor acceded thereto. Id. [FN109]. International Convention on the Elimination of All Forms of Racial Discrimination, supra note 40, art. 1(i). [FN110]. Id. art. 1(2). [FN111]. Id. art. 1(4). [FN112]. Id. art. 2(1). [FN113]. Id. art. 5. This article lists, in outline form, the rights guaranteed individuals by both Covenants on Human Rights, and adds a public accommodations section guaranteeing the right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafs, theatres [and] parks. Id. [FN114]. Covenant on Civil and Political Rights, supra note 38, art. 18. [FN115]. 36 U.N. GAOR (73d plen. mtg.), U.N. Doc. A/RES/36/55 (1982), 21 INT'L LEGAL MATERIALS 205 (1982). [FN116]. Id. art. 6. [FN117]. Id. art. 8. [FN118]. Covenant on Civil and Political Rights, supra note 38, art. 27. For background concerning the limited nature of the right codified in article 27, see generally F. CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, U.N. Pub. E.78.XIV.1 (1978); Sohn, The Rights of Minorities, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 270-89 (L. Henkin ed. 1981).
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[FN119]. See generally infra notes 243-58 and accompanying text. [FN120]. General Comments Under Article 40, Paragraph 4 of the Covenant, adopted July 28, 1981 by the Committee on Human Rights at its 311th meeting (13th session), U.N. Doc. CCPR/C/21 at 4 (1981) (General Comment 4/13(2)). [FN121]. International Labour Organisation Convention (No. 111), adopted June 25, 1958, 362 U.N.T.S. 31 (1960) (States Parties agree to formulate a national policy to promote equality of opportunity and treatment in respect of employment and occupation and to work toward obtaining the cooperation of employers' and workers' organizations and other appropriate groups in achieving this goal of eliminating discrimination based on race, colour, sex, religion, political origin, national extraction or social origin). [FN122]. Entered into force May 22, 1962, reprinted in UNESCO, UNESCO's STANDARD-SETTING INSTRUMENTS I.A.1 (1981) (States Parties to the Convention agree, inter alia, to abrogate any laws and discontinue any administrative practices that involve discrimination in education, based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, to give foreign nationals living in their territory access to education equal to that given their own nationals, and to ensure that there is no discrimination in the admission of pupils to educational institutions). [FN123]. Opened for signature June 29, 1951, 165 U.N.T.S. 303 (entered into force May 23, 1953) (States Parties agree to promote, by laws, regulations, collective agreements, wage determination, or a combination thereof, equal remuneration for men and women for work of equal value). [FN124]. G.A. Res. 640 (VII), 7 U.N. GAOR Supp. (No. 20) at 27, U.N. Doc. A/2361 (1952) (States Parties agree to accord women voting rights equal to those enjoyed by men and to make women eligible for election to all publicly elected bodies, on terms equal with men). [FN125]. G.A. Res. 1040, 11 U.N. GAOR Supp. (No. 17) at 18, U.N. Doc. A/3572 (1957) (each Contracting State agrees that neither the contract of marriage nor the dissolution of marriage between an alien and one of its nationals nor the change of nationality of the husband during marriage, will automatically affect the nationality of the wife). [FN126]. G.A. Res. 1763A(XVII), 17 U.N. GAOR Supp. (No. 17) at 28, U.N. Doc. A/5217 (1963) (designed to ensure that no marriages would be given legal effect in the absence of full and free consent of both parties). [FN127]. G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1980) (States Parties agree to take all appropriate measures, including legislation, to ensure full development and advancement of women in political, social, economic, and cultural fields, in order to guarantee them the exercise and enjoyment of human rights and fundamental freedoms on basis equal to that of men). [FN128]. See generally Dinstein, The Right to Life, Physical Integrity and Liberty, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 114-37 (L. Henkin ed. 1981). [FN129]. Covenant on Civil and Political Rights, supra note 38, art. 6(1). [FN130]. Id. art. 6(2). [FN131]. Id. art. 6(5). [FN132]. Id. art. 9(1).
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[FN133]. Id. [FN134]. Id. art. 9(3). [FN135]. Id. art. 9(4). [FN136]. Id. art. 9(5). [FN137]. See, e.g., Ringeisen v. Austria (1971), Ser. A, No. 13, 1 E.H.H.R. 455 (1980); Stgmller v. Austria (1969), Ser. A, No. 9, 1 E.H.H.R. 155 (1979). [FN138]. Covenant on Civil and Political Rights, supra note 38, art. 12(4). [FN139]. See, e.g., Alam v. United Kingdom, in EUROPEAN COMMISSION ON HUMAN RIGHTS, STOCK-TAKING ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS 19, Council of Europe Doc. DH(72)2 (1972). [FN140]. Id. art. 17(1). [FN141]. See, e.g., 13 U.N. GAOR Annex (Agenda Item 32) at 6-8, U.N. Doc. A/4045 (1958) (debate about use of term arbitrary in article 9 of the Covenant on Civil and Political Rights); 12 U.N. GAOR Annex (Agenda Item 33) at 12-13, U.N. Doc. A/3764/Add.1 (1957) (debate about use of term arbitrary in article 6 of the Covenant on Civil and Political Rights). See also Hassan, The Word Arbitrary as Used in the Universal Declaration of Human Rights: Illegal or Unjust?, 10 HARV. INT'L L.J. 225 (1969). [FN142]. See supra note 141. [FN143]. Covenant on Civil and Political Rights, supra note 38, art. 9(1) ( No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.). [FN144]. See id. art. 12(3). [FN145]. See id. arts. 18(3), 22(2). [FN146]. See id. art. 21. [FN147]. 18 INT'L LEGAL MATERIALS 931 (Eur. Ct. Hum. Rts. 1979). [FN148]. Id. at 951. [FN149]. Id. [FN150]. 1935 P.C.I.J., Ser. A/B, No. 65, at 41 (Advisory Opinion of Dec. 4). [FN151]. Id. at 56. [FN152]. Id. [FN153]. Id. [FN154]. See, e.g., Research in International Law of the Harvard Law School, The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, 23 AM. J. INT'L L. 131, 188-93 (Special Supp. 1929) (mob violence cases).
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[FN155]. 10 U.N. GAOR Annex (Agenda Item 28, add. pt. II) at 30, U.N. Doc. A/2929 (1955) [hereinafter cited as Agenda Item 28]. [FN156]. Cf. Covenant on Civil and Political Rights, supra note 38, art. 20 (obligation to prohibit by law any propaganda for war, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence). [FN157]. MULTILATERAL TREATIES, supra note 75, at 126. In its reservation, the United Kingdom indicated that it interpreted article 20 in a manner consistent with articles 19 and 21 of the Covenant, guaranteeing the rights to hold opinions without interference and to assemble peacefully, and, having legislated in matters of public order, reserved the right not to introduce any further legislation. Id. [FN158]. Id. at 120-25 (Denmark, Finland, Iceland, Norway, and Sweden). [FN159]. Four Treaties Pertaining to Human Rights: Message from the President of the United States xi-xii (95th Cong., 2d Sess., Executives C, D, E, and F 1978). Cf. 21 U.N. GAOR (1496th plen. mtg.) (Agenda Item 62) at 61-62, U.N. Doc. A/PV. 1496 (1966) (United States expressed concern about compatibility of article 20 with first amendment to U.S. Constitution). [FN160]. See generally THE ORIGINS OF THE INTERNATIONAL LABOR ORGANIZATION (J. Shotwell ed. 1934). [FN161]. See, e.g., INTERNATIONAL LABOUR OFFICE, CONVENTIONS AND RECOMMENDATIONS ADOPTED BY THE INTERNATIONAL LABOUR CONFERENCE, 1919-1966 (1966). [FN162]. Eighth Annual Message to Congress, Jan. 6, 1941 reprinted in 3 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2855 (1966). [FN163]. Id. at 2860. [FN164]. Eleventh Annual Message to Congress, Jan. 11, 1944, reprinted in 3 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2875 (1966). [FN165]. Id. at 2881. [FN166]. Eighth Annual Message to Congress, supra note 162, at 2859. [FN167]. Id. at 2860. [FN168]. Id. at 2860-61. [FN169]. Eleventh Annual Message to Congress, supra note 164, at 2876. [FN170]. Id. [FN171]. Id. at 2880. [FN172]. Id. at 2881. [FN173]. Id. [FN174]. Id. [FN175]. See U.S. DEPARTMENT OF STATE, POSTWAR FOREIGN POLICY PREPARATION,
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1939-1945, at 483 (1949). [FN176]. 12 DEP'T ST. BULL. 928, 928-29 (1945). [FN177]. 3 U.N. INFORMATION ORGANIZATION, DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION 546-47 (1945). [FN178]. U.N. CHARTER preamble. [FN179]. Id. art. 55. [FN180]. Id. [FN181]. Universal Declaration, supra note 37, art. 22. [FN182]. Id. arts. 23-28. [FN183]. See supra note 39. [FN184]. MULTILATERAL TREATIES, supra note 75, at 108. Although several countries made reservations with respect to certain provisions of the Covenant, India's reservations concerning article 1 were especially objectionable to France, the Netherlands, and the Federal Republic of Germany. Id. at 113. India declared that the words the right of self-determination appearing in [this article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nationwhich is the essence of national integrily.' Id. at 110. Of the three countries that objected to India's reservation, the Federal Republic of Germany registered the strongest dissent:The right of self-determination as enshrined in the Charter of the United Nations and as embodied in the Covenants applies to all peoples and not only to those under foreign domination. All peoples, therefore, have the inalienable right freely to determine their political status and freely to pursue their economic, social and cultural development. The Federal Government cannot consider as valid any interpretation of the right of self-determination which is contrary to the clear language of the provisions in question. It moreover considers that any limitation of their applicability to all nations is incompatible with the object and purpose of the Covenants.Id. at 113. [FN185]. Id. at 113. The Philippines ratified the Covenant on June 7, 1974, while Honduras ratified it on February 17, 1981. Id. [FN186]. These states include the Central African Republic (May 8, 1981); the Democratic People's Republic of Korea (Sept. 14, 1981); Honduras (Feb. 17, 1981); Mexico (Mar. 23, 1981); and Saint Vincent and the Grenadines (Nov. 9, 1981). MULTILATERAL TREATER, supra note 75, at 108. [FN187]. 11 U.N. ESCOR Supp. (No. 5) Annex 3 at 26-30, U.N. Doc. E/1681 (1950). [FN188]. G.A. Res. 421(V), 5 U.N. GAOR Supp. (No. 20) at 42-43, U.N. Doc. A/1775 (1950). [FN189]. See generally SEMINAR ON THE REALIZATION OF ECONOMIC AND SOCIAL RIGHTS CONTAINED IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, at 5-13, U.N. Doc. ST/ TAO/HR/31 (1967) [hereinafter cited as Seminar on Economic and Social Rights]. [FN190]. 13 U.N. ESCOR at 405-19, U.N. Doc. E/SR.524 (1951); Seminar on Economic and Social Rights, supra note 189, at 6. [FN191]. G.A. Res. 543(VI), 6 U.N. GAOR Supp. (No. 20) at 36, U.N. Doc. A/2119 (1952).
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[FN192]. 9 U.N. GAOR Annex (Agenda Item 58) at 7-15, U.N. Doc. A/2808 (1954). [FN193]. Id. [FN194]. See Agenda Item 28, supra note 155, at 19-20; 17 U.N. GAOR Annex (Agenda Item 43) at 6-17, U.N. Doc. A/5365 (1962). [FN195]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 2, para. 1. [FN196]. See id. arts. 13, 14. Article 14, for example, provides that each State Party, which was not able to provide free, compulsory education when it became a Party, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of [free] compulsory education. See also id. arts. 6(2), 12(2), 15(2). [FN197]. Each State Party . . . undertakes to take steps . . . with a view to achieving progressively the full realization of the rights recognized in the present Covenant . . .. Id. art. 2(1). [FN198]. Id. [FN199]. Id. [FN200]. For a discussion of the history and preparation of the International Covenant on Economic, Social and Cultural Rights, see COMMISSION TO STUDY THE ORGANIZATION OF PEACE, supra note 50, at 101-69 (1968). [FN201]. Id. See also Agenda Item 28, supra note 155, at 20. [FN202]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 22. [FN203]. Id. art. 23. [FN204]. Id. art. 2(2). [FN205]. Agenda Item 28, supra note 155, at 20. [FN206]. Compare Covenant on Economic, Social and Cultural Rights, supra note 39, art. 2(1) (states may achieve progressively the rights recognized in the Covenant) with id. art. 2(2) (states undertake to guarantee that the rights recognized in the Covenant will be exercised without discrimination). [FN207]. Id. art. 2(3). [FN208]. For a discussion of the special meaning of the term discrimination in the international legal setting, see Norris & Reiton, The Suspension of Guarantees: A comparative Analysis of the American Convention on Human Rights and the Constitutions of the States Parties, 30 AM. U.L. REV. 189, 203-05 (1981). The prohibition of discrimination does not forbid special measures of protection designed to aid depressed groups, classes or categories of individuals, so long as these special measures are not carried on longer than is reasonably necessary. The preservation of linguistic, cultural and religious facilities for minority groups is also consistent with the nondiscrimination principle.Id. at 204 n.105 (quoting McKean, The Meaning of Discrimination in International and Municipal Law, 1970 BRIT. Y.B. INT'L L. 177, 185-86 (1971)). [FN209]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 3. [FN210]. See McDougal, Lasswell & Chea, Human Rights for Women and World Public Order: The Out-
Page 46
lawing of Sex-Based Discrimination, 69 AM. J. INT'L L. 497, 511-13 (1975) (discussing the impact of the Covenant's provisions in reinforcing the general norm against sex-based discrimination). [FN211]. See supra note 209 and accompanying text. [FN212]. See Covenant on Civil and Political Rights, supra note 38, art. 4. Article 4 states in part: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the . . . Covenant may take measures derogating from their obligations under the . . . Covenant to the extent strictly required by the exigencies of the situation . . .. [FN213]. Id. arts. 12(3), 14, 19(3), 19(6), 21, 22(2). [FN214]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 4. [FN215]. Id. art. 8. [FN216]. Id. art. 4. [FN217]. Id. art. 4. [FN218]. Id. art. 8(1)(a), (1)(c). [FN219]. Covenant on Civil and Political Rights, supra note 38, arts. 21, 22. [FN220]. Agenda Item 28, supra note 155, at 54. [FN221]. 243 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 18, 26 (1946). [FN222]. See 3 U.N. INFORMATION ORGANIZATION, supra note 177, at 265. [FN223]. 243 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 18, 26 (1946). [FN224]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 7. [FN225]. See, e.g., id. art. 11(1) (recognizing, inter alia, right to the continuous improvement of living conditions); art. 11(2) (calling for improvement in methods of production, conservation, and distribution of food); art. 12 (identifying as goals a reduction in infant mortality and improvements in environmental and industrial hygiene). [FN226]. Id. art. 18. [FN227]. Id. art. 6(1). [FN228]. Id. [FN229]. Id. [FN230]. Id. art. 6(2). [FN231]. Id. [FN232]. President Roosevelt's Four Freedoms speech, supra note 162 and accompanying text, placed the right to work in the context of limiting special privileges, preserving civil liberties, and a constantly rising
Page 47
standard of living as a result of scientific progress. See Covenant on Economic, Social and Cultural Rights, supra note 39, art. 15, para. (1)(b). [FN233]. U.N. CHARTER art. 55, para. a. [FN234]. Article 9 of the Covenant of Economic, Social and Cultural Rights, supra note 39, provides in full: The States Parties to the present Covenant recognize the right of everyone to social security including social insurance. [FN235]. E.g., International Labour Organization Convention (No. 118) Concerning Equality of Treatment of Nationals and Non-nationals in Social Security, adopted June 28, 1962, 494 U.N.T.S. 271 (1964); International Labour Organisation Convention (No. 117) Concerning Basic Aims and Standards of Social Policy, adopted June 22, 1962, 494 U.N.T.S. 249 (1964). [FN236]. See Agenda Item 28, supra note 155, at 107. [FN237]. International Covenant on Economic, Social and Cultural Rights, supra note 39, arts. 13, 14. [FN238]. Id. In France, since the constitutions of 1791 and 1793, education was considered a necessity for all, and the society had to provide free public instruction for all citizens. See Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582, 1593 (1981). [FN239]. See Implementation of the International Convenant on Economic, Social and Cultural Rights, Report of the Sessional working Group on the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/1981/64 (1981). [FN240]. Universal Declaration, supra note 37. Although the Universal Declaration does not contain a reporting clause such as that contained in articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, a system of periodic reports was established in 1956, E.S.C. Res. 624B(XXII), 22 U.N. ESCOR Supp. (No. 1) at 12, U.N. Doc. E/2929 (1956), but the reports were discontinued in 1981, E.S.C. Decision 19 81/151, 1981 U.N. ESCOR Supp. (No. 1) at 46 (1981). This discontinuance was a backward step; it would have been better if the Council instead had followed the suggestions for a consolidation of various procedures. See Sohn, The Improvement of the UN Machinery on Human Rights, 23 INT'L STUD. Q. 186, 195-97 (1979). [FN241]. Cf. International Covenant on Economic, Social and Cultural Rights, supra note 39, art. 18 (authorization for specialized agencies to report to the Economic and Social Council on the progress that has been made in the implementation of the Covenant). The United Nations has identified four specialized agencies within its system as having a special interest in human rights: the International Labour Organisation (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), and the Food and Agricultural Organization. UNITED NATIONS, THE UNITED NATIONS AND HUMAN RIGHTS 15 (1978). See also UNITED NATIONS ACTION, supra note 70, at 324-34. [FN242]. Oct. 18, 1961, 529 U.N.T.S. 89 (1965). [FN243]. For a thorough examination of the Concert of Europe's role in achieving sovereignty for Belgium and Greece, see R. ALBRECHT-CARRI, THE CONCERT OF EUROPE 60-128 (1968). Concerning the role of the Concert of Europe in the Balkans, see W. MENDICOTT, THE CONGRESS OF BERLIN AND AFTER (1938). [FN244]. Atlantic Charter, Aug. 14, 1941, United States-United Kingdom, 55 Stat. 1603, E.A.S. No. 236.
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[FN245]. U.N. CHARTER art. 1, para. 4; id. art. 55. [FN246]. Covenant on Civil and Political Rights, supra note 38, art. 1(1); Covenant on Economic, Social and Cultural Rights, supra note 39, art. 1(1). [FN247]. Article 1(3) of the Covenant on Civil and Political Rights, supra note 38, is identical to article 1(3) of the Covenant on Economic, Social and Cultural Rights, supra note 39. That article provides, in part, that States Parties . . . including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination. [FN248]. U.N. CHARTER arts. 73, 76. Article 73, for example, provides in part: Members of the United Nations which have . . . responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost . . . the well-being of the inhabitants of these territories . . .. [FN249]. For the Indian reservation and responses thereto, see supra note 184. [FN250]. The Covenant states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community 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. Covenant on Civil and Political Rights, supra note 38, art. 27. [FN251]. Covenant on Civil and Political Rights, supra note 38, art. 1(2); Covenant on Economic, Social and Cultural Rights, supra note 39, art. 1(2). Article 1(2), identical in both Covenants, states in full: 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 benefit, and international law. In no case may a people be deprived of its own means of subsistence. [FN252]. See supra note 251. [FN253]. Id. [FN254]. J. KAUFMANN, UNITED NATIONS DECISION MAKING 98 (1980). [FN255]. Id. [FN256]. Because the Group of 77 constitutes a majority of most U.N. bodies, it has been argued that by voting on proposed resolutions as a unit, the Group undermines the democratic process of U.N. decisionmaking. Id. at 99. In practice, however, the Group has realized that consensus decisionmaking is the foundation of the U.N. and, hence, has been willing to negotiate on a variety of issues. Id. [FN257]. See supra note 115. [FN258]. Cf. id. (resolution adopted without a vote). [FN259]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 1(1). [FN260]. See supra note 79. [FN261]. Id. art. 22(1). [FN262]. Id. art. 22(2). [FN263]. INTERNATIONAL LABOUR ORGANISATION CONSTITUTION annex II(a), at 24 (1969).
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See 9 M. HUDSON, INTERNATIONAL LEGISLATION 124 (1950). [FN264]. INTERNATIONAL LABOUR ORGANISATION CONSTITUTION, supra note 263; M. HUDSON, supra note 263, at 126. [FN265]. U.N. CHARTER art. 55, para. a. [FN266]. Universal Declaration, supra note 37, art. 22. [FN267]. Id. art. 28. [FN268]. See, e.g., 33 U.N. ESCOR (1396th mtg.), U.N. Doc. E/CN.4/SR.1396 at para. 36 (1977). [FN269]. Declaration of Teheran, supra note 56, at 14, 16 (resolutions XVII and XXI). [FN270]. See generally M'Baye, Le droit au development comme un droit de l'homme, 5 HUM. RTS. J. 505-34 (1972). [FN271]. Adopted Nov. 27, 1978, by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its 20th Session, reprinted in UNESCO, supra note 122, III.C.1. [FN272]. Id. art. 3. [FN273]. Report of the Working Group to the Commission on Human Rights, U.N. Doc. E/CN. 4/1489, at 5 (1982) [hereinafter cited as Report of the Working Group]. [FN274]. Id. at 6. [FN275]. Id. [FN276]. Id. [FN277]. Id. [FN278]. Id. at 9. [FN279]. Id. [FN280]. Id. [FN281]. UNITED NATIONS, DEPARTMENT OF PUBLIC INFORMATION, THESE RIGHTS AND FREEDOMS 60, U.N. Sales No. 1950.I.6 (1950). [FN282]. Report of the Working Group, supra note 273, at 11. [FN283]. Id. [FN284]. G.A. Res. 34/46, para. 8, 34 U.N. GAOR Supp. (No. 46) at 171 (1980) (overall analysis of the United Nations' approach to human rights). See also G.A. Res. 35/174, para. 5, 35 U.N. GAOR Supp. (No. 48) at 196, U.N. Doc. A/35/48 (1981) (resolution urging member states to accede to or ratify international instruments in the field of human rights). [FN285]. See, e.g., Trnudd, The Relation between Human Rights, Peace and Development at 9, U.N. Doc. HR/NEW YORK/1981/WP.1 (working paper presented at the U.N. Seminar on the Relations That Exist
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between Human Rights, Peace and Development, U.N. Doc. ST/HR/SER.A/10 (1981)) [hereinafter cited as U.N. Seminar]. [FN286]. The development of society is one of the essential means for ensuring individual development. It is more than mere economic growth, involving also the political, economic, social, cultural, and spiritual dimensions of the quality of life. Societal development should aim primarily at enabling the individual to dovetail his development with that of society. U.N. Seminar, supra note 285, at 11 (footnote omitted). See note 288 infra and accompanying text. [FN287]. Report of the Secretary-General, U.N. Doc. E/CN. 4/1334 at 7-12 (1979). [FN288]. Id. at 13. See also Ferrero, Study on the New International Economic Order and the Promotion of Human Rights: Progress Report, at 22-25, U.N. Doc. E/CN.4/Sub. 2/477 (1981) (discussing the relationship between development and human rights; the right to development is both collective and individual and is the final goal and objective of the new international economic order.). [FN289]. SOCIT FRANCAISE POUR LE DROIT INTERNATIONAL, RAPPORT DU COLLOQUE D'AIXEN-PROVENCE 28 (1973). [FN290]. J. NYERERE, FREEDOM AND DEVELOPMENT: A SELECTION FROM WRITINGS AND SPEECHES, 1968-1973, at 58 (1973), quoted in Report of the Secretary-General, supra note 287, at 70. [FN291]. See Report of the Secretary-General, supra note 287, at 71-73. The report cites the Preambles to the Universal Declaration of Human Rights and to both International Covenants on Human Rights in support of the proposition that the maintenance of peace is fundamentally linked to the realization of respect for human rights: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Id. at 71. [FN292]. See id. at 78-81. [FN293]. U.N. Commission on Human Rights Res. 5(XXXII), 60 U.N. ESCOR Supp. (No. 3) at 62, U.N. Doc. E/5768 [E/CN. 4/1213] (1976). [FN294]. Id. [FN295]. Id. [FN296]. Id. at 62. [FN297]. 60 U.N. ESCOR Supp. (No. 3) at 23-24, U.N. Doc. E/5768 [E/CN. 4/1213] (1976) (debate preceding adoption of the Commission's Res. 5(XXXII), supra note 293). [FN298]. Id. [FN299]. Supra note 58. [FN300]. U.N. Doc. E/5768, supra note 297, at 23-24. [FN301]. Id. at 26. [FN302]. 62 U.N. ESCOR Supp. (No. 6) at 10, U.N. Doc. E/5927 [E/CN. 4/1257] (1977) (debate preceding adoption of the Commission's Res. 4(XXXIII), infra note 306).
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[FN303]. Id. [FN304]. Id. at 11-12. [FN305]. Id. at 12. [FN306]. U.N. Commission on Human Rights Res. 4(XXXIII), 62 U.N. ESCOR Supp. (No. 6) at 75, U.N. Doc. E/5927 [E/CN. 4/1257] (1977). [FN307]. Id. at 12. [FN308]. Report of the Secretary-General, supra note 287. See supra notes 287-92 and accompanying text. [FN309]. 1979 U.N. ESCOR Supp. (No. 6) at 27, U.N. Doc. E/1979/36 [E/CN. 4/1347] (debate preceding adoption of E.S.C. Res. 4(XXXV), infra note 310). [FN310]. U.N. Commission on Human Rights Res. 4(XXXV), 1979 U.N. ESCOR Supp. (No. 6) at 107, U.N. Doc. E/1979/36 [E/CN. 4/1347]. [FN311]. See Report of the Secretary-General, supra note 287, at 81. In fact, it has been claimed that as a corollary to an individual's right to peace, [the individual's] first international duty should be to unite with others to maintain international peace and security. Daes, Study of the Individual's Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights, U.N. Doc. E/CN.4/Sub. 2/413, para. 520, quoted in id. [FN312]. G.A. Res. 33/73, 33 U.N. GAOR Supp. (No. 45) at 55-56, U.N. Doc. A/33/45 (1979). [FN313]. Id. at 55. [FN314]. Id. at 56. [FN315]. G.A. Res. 33/73, U.N. Press Release GA/5942 at 109 (1979). [FN316]. African Charter of Human and Peoples' Rights, supra note 79. [FN317]. Article 23 of the Charter provides: 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 Organization of African Unity shall govern relations between States. Id. art. 23(1). [FN318]. Id. [FN319]. Id. art. 24. [FN320]. UNESCO, SYMPOSIUM ON NEW HUMAN RIGHTS: THE RIGHTS OF SOLIDARITY, MEXICO CITY, 1980 at 3, UNESCO Doc. 55.81/CONF.80 6/4 (1981). See also id. at 14-18. [FN321]. Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF. 48/14/Rev. 1, U.N. Pub. No. E.73.IIA.14 at 3 (1974). [FN322]. Id. at 4, Principle 1. [FN323]. U.N. Doc. A/CONF.48/PC/WG.1/CRP.4 at 65 (1971).
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[FN324]. Universal Declaration, supra note 37, art. 25(1). [FN325]. Covenant on Economic, Social and Cultural Rights, supra note 39, art. 11. [FN326]. See generally Marks, Emerging Human Rights: A New Generation for the 1980's?, 33 RUTGERS L. REV. 435 (1981). See 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, U.N. Doc. ST/HR/SER.A/8 at 22 (1980); see also UNESCO, supra note 320, at 3. But see Kirkpatrick, Double Standards in Human Rights 2, 2 (Dep't of State Bureau of Public Affairs, U.S. Current Policy No. 353, Nov. 24, 1981). [FN327]. UNESCO, supra note 320, Annex III at ii. [FN328]. UNESCO, supra note 320, at 30. [FN329]. Lecture by Karel Vasak, Tenth Study Session of the International Institute of Human Rights (July 1979), as quoted in Marks, supra note 326, at 441. [FN330]. Id. [FN331]. Study on the New International Economic Order and the Promotion of Human Rights, U.N. Doc. E/CN.4/Sub. 2/477 at 15 (1981); Lecture by Karel Vasak, supra note 329. [FN332]. See, e.g., 2 COUNCIL ON ENVIRONMENTAL QUALITY & U.S. DEP'T OF STATE, THE GLOBAL 2000 REPORT TO THE PRESIDENT (n.d.). [FN333]. Kirkpatrick, supra note 326, at 2. [FN334]. UNESCO, supra note 320, Annex IV, at ii. [FN335]. Declaration of Teheran, supra note 56, para. 13. [FN336]. See G.A. Res. 32/130, 32 U.N. GAOR Supp. (No. 45) at 150-51, U.N. Doc. A/32/45 (1977). [FN337]. Id. at 151. For an excellent comment on these provisions, see Donnelly, Recent Trends in UN Human Rights Activity: Description and Polemic, 35 INT'L ORG. 633, 643-51 (1981). 32 Am. U. L. Rev. 1 END OF DOCUMENT

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32 AMULR 1 32 Am. U. L. Rev.

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 AMULR 1 32 Am. U. L. Rev. 1

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.