CP(IT/P) Doc.90 PARIS, 27 September 1946
AUSTRALIAN AMENDMENT IB (13)
(Court of Human Rights) The Australian proposal for a European Court of Human Rights has already been discussed in the Commission on Finland and in the Legal and Drafting Commission. Discussion in the Legal Commission was, however, limited in two respects. First, the reference to the Legal Commission was from the Finland Political Commission only, with the result that the proposal was discussed in relation to the territory and inhabitants of Finland in regard to which the general Australian proposal had admittedly a restricted validity.
Second, in the Legal Commission the Australian proposal could necessarily not be discussed from the political point of view although it is essentially a political matter. In the case of Italy, however, the Australian proposal has full relevance and application and the present occasion will, I hope, be an opportunity for discussion of the proposal from every aspect.
The suggestion for the establishment of a European Court of Human Rights derives fundamentally from the Charter of the United Nations and from the proceedings of the United Nations Charter. Of the matters with which the Charter deals none is more prominently featured than that of human rights and fundamental freedoms. It is the subject of the second paragraph of the Preamble which reaffirms faith in fundamental human rights and in the dignity and worth of the human person. This emphasis is maintained throughout the Charter.
In speaking to amendments to Article 13 of this treaty, I have affirmed the relevance of Articles 55 and 56 of the Charter. Those Articles are of special importance here. Under Article 55 the United Nations are under an obligation to promote universal respect for, and observance of, human rights and fundamental freedoms for all, and by Article 56 all members pledge themselves to take joint and separate action in co-operation with the organisation for the achievement of the purposes set forth in Article 55. It follows from these provisions that the members of the United Nations have jointly and severally pledged themselves to take action to promote universal respect for, and observance of, human rights and fundamental freedoms, and this action is to be taken in co-operation with the organisation.
These are not the only places in the Charter in which human rights and fundamental freedoms are provided for. The General Assembly is to initiate studies and make recommendations for the purpose of assisting in the realisation of human rights and fundamental freedoms for all. The Economic and Social Council may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. It may set up a commission for the promotion of human rights, and it has in fact done so. A basic objective of the trusteeship system is to encourage respect for human rights and fundamental freedoms for all. The total result of all these provisions is, as far as the present proposal is concerned:-
(1) to make human rights and fundamental freedoms a matter of international concern; and (2) to commit members of the United Nations to action for the realisation of human rights and fundamental freedoms.
Moreover, the Economic and Social Council of the United Nations, following recommendations from the Commission on Human Rights, recorded in its report of July 1946, the following decision:-
'Pending the adoption of an International bill of rights, the general principle shall be accepted that international treaties involving basic human rights, including to the fullest extent practicable treaties of peace, shall conform to the fundamental standards relative to such rights set forth in the Charter.'
This decision was brought to the attention of the governments of the 51 member States on July 12, 1946, in a letter from the Acting Secretary-General of the United Nations in which after citing provisions of the Charter, including Article 56, he said:-
'I am confident that at any future time when your Government may be negotiating the conclusion of treaties involving basic human rights with any other Government or Governments, the principle adopted by the Council . . . will be borne in mind.'
These references show that the appropriate organisations and authorities of the United Nations are in no doubt as to where responsibility lies for the implementation of human rights. It is on the member states themselves, and it rests on Article 56 whereby member states have pledged themselves to take action in co-operation with the organisation for achieving the observance of these rights of freedom.
The proposal to establish a Court of Human Rights is therefore recognition of the duty of the United Nations to give in this respect effect and enforcement to general and far reaching obligations assumed under the United Nations Charter.
There is also a historical background to the proposal to be found in the history of the Minority Treaties entered into after the war of 1914-18. The rights provided for in these treaties were fairly closely defined and in addition the Treaties contained actual provision of machinery for enforcement of such rights, including sanction and supervision by the League of Nations and provision for jurisdiction of the Permanent Court of International Justice in disputes between a State member of the Council and any State bound by the Minority Treaties as to questions of law or fact arising out of the treaties.
This machinery, however, carefully as it was drawn up proved in general ineffective to secure the proper enforcement of the rights in question which it was sought to maintain. Some of the reasons for this were that claims based on the treaty provisions instead of being treated as issues of individual or minority rights were dealt with rather as political issues as between Governments and furthermore that there was no legal right of claim or appeal in respect of an individual as distinct from Governments. Moreover, the Treaties provided no competent organisation to supervise the compliance by the Minority States with the obligation to make the treaty provisions part of their fundamental law.
One essential feature of the Australian proposal, derived from experience of these earlier attempts, is therefore that the proposed Court would be accessible both to any of the States signatory to this Treaty and also to any person or group of persons resident in Italy or in the territory ceded by Italy to other States.
The nature and constitution of the Court is outlined broadly in the text of the Australian amendment. The Court so established would have three main sources of jurisdiction in respect of the country under consideration by this Commission:
(a) The citizenship provisions contained in Article 13, paragraph 1, 2 and 3 of the draft treaty and the citizenship clauses to be included in the Statute for the Free Territory of Trieste. Under these clauses the Court would regulate, in the ultimate resort, and in relation to the inhabitants of ceded territories, the automatic acquisition of nationality, the exercise of the right of option, the derivative acquisition of nationality, required transfer of optants and the economic regulations of the transfer.
(b) Supervision of Article 13 (4) of the Italian Treaty, i.e. the ultimate juridical protection of the human rights and fundamental freedoms of all inhabitants of territories ceded to other countries under this treaty.
(c) Supervision of Article 14 of the treaty, i.e. the protection of the human rights and freedoms not only of Italian citizens in Italy but also of other nationals under Italian jurisdiction.
In the case of the territories ceded under this treaty claims as to citizenship or other human rights and freedoms might be made in the first instance to a bilateral mixed commission and settled in the majority of cases on a purely administrative basis. Appeal from such bodies, however, would lie with the proposed European court and the interpretation by the court of any of the relevant clauses of the Italian treaty and all the court's decisions would be binding as precedents on the courts of the countries concerned.
In the view of the Australian Delegation there are real practical requirements arising from the Italian treaty which in themselves go far to justify the creation of the proposed tribunal. It is inevitable that the citizenship provisions of the treaty will give rise to numerous legal disputes. There are already agreed clauses in the treaty regulating the citizenship of persons in transferred territories and the number of amendments which have been lodged concerning the status of these people indicate how much importance is attached to the question of nationality. A principle of the treaties made after the war of 1914-18 was that every person should have a definite nationality and the Minorities clauses of the treaties prescribed equal citizenship rights without distinction. These rights, however, were very often not accorded in practice, one main reason being the absence of any machinery for supervising the relevant treaty provisions. There can be no doubt that the experience in this period shows clearly that questions of nationality and citizenship cannot be adequately dealt with by national courts or State administrations in the absence of an international body with the requisite status and jurisdiction to empower supervision.
For the practical reasons I have mentioned, Mr. President, and because of the undoubted obligations which lie on all of us by virtue of the United Nations Charter, the Australian Delegation is confident that this Commission will give to the proposal for a European Court of Human Rights the close and careful consideration which it merits. The proposal forms an entirely new part of the draft treaty; it is not an attempt to alter or recast any of the existing parts of the document which has come to us from the Council of Foreign Ministers. It represents the hope that here and now an outstanding opportunity will be taken to make some tangible advance in the cause of justice and the rights of man in Europe.