175 Hodgson to Department of External Affairs

Despatch 1, PARIS, 5 January 1948

I have the honour to submit the report of the Second Session of the Commission on Human Rights[1], along with Appendices A (Declaration), B (Convention), and C (Implementation), covering the reports of the three Working Groups established during the Session.

[matter omitted]

8. The United Kingdom, India, Lebanon, Belgium and Australia contended that the main task of the Commission was the formulation of a Bill or Convention of Human Rights, and not a mere statement of general principles. A draft Convention was much more important since it involved obligations to be embodied in international law and in the municipal law of each of the States participating. Further, all the Assembly and Economic and Social Council resolutions, and the terms of reference to the Commission specifically imposed this mandate on the Commission.

9. During this discussion, the representatives of Lebanon, Belgium and Australia insisted that the Commission was, by its terms of reference, bound to consider at this session for submission to Governments, a scheme of implementation for the Bill of Human Rights, irrespective of the work done on any declaration or Bill.

10. Eventually the Commission, by a majority vote, accepted a Belgian proposal to set up immediately three working parties to deal respectively with the problems of (a) the Declaration; (b) the Bill or Convention or Conventions; and (c) implementation. From (b) it will be seen that difficulties of terminology arose, as the word Bill is not known in international Law, and in the Spanish, French and Russian languages it is translated as Convention.

11. From the debate three important principles emerged which were generally recognised though not agreed on at this stage in any formal motion:-

(a) That any declaration drafted by the Commission for submission to Governments should consist of articles of principle only, and being the subject of an Assembly recommendation, would carry no legal obligation;

(b) that the Bill or Convention of Human Rights should be precise and detailed, and drawn in the form of a treaty;

(c) that the provisions of the Bill or Convention only could or should be implemented, and that any scheme of implementation should cover both the field of domestic and international jurisdiction.

Working Groups 12. It was left to the Chairman to nominate the six members for each of the three groups, it being understood that representatives could nominate observers to the other groups on which they were not represented with the right to speak, on request, on any matter before the group. It was also agreed that representatives of Specialised Agencies, and consultants of non-Governmental organisations would have a right to submit their views, on request, to the working groups. From the report it will be seen that the list of these bodies is a formidable one, and most of their representatives not only spoke in the plenary sessions, but delayed the work of the Groups, especially those on the Declaration and Convention, in needless repetition of the particular objectives of their oganisations.

(a) Declaration Group 13. The Soviet and United States strengths were concentrated in this group. The Australian delegation was represented by an observer throughout.

14. The work of this group needs little comment, as the proceedings are sufficiently summarised in the report of the group (Document E/600 Annex A) and the summary records, submitted separately from this report.

15. The general discussion, which was very brief, revolved mainly round the form of the declaration, and most of the time allotted to the group was taken up in endless discussion on the wording of the articles.

16. As will be appreciated from the final text, there was a great deal of confusion of thought as to language, which persisted to the end of the Conference, in which respect see the comment of the Australian Delegation on the report of this Group (E/600 Annex C, page 71). Some delegates insisted on very precise language, drafted with exactitude, more appropriate for a Convention. Indeed, one of the great difficulties throughout the Session, was caused by the desire of these delegates to have analogous articles in the Declaration and Convention drafted in precisely similar terms. It was not possible fully to rectify this in the limited time available, and as a consequence, there is bound to be some confusion in the minds of those who have to study the two documents with a view to subsequent comment to the United Nations.

17. Thus, there is considerable point in the contention of the United States representative, reintroduced at the end of the Session, that the articles of the Declaration should be brief, in order to facilitate its dissemination and understanding throughout the world.

18. In this respect the United States approach is very close to the Australian viewpoint that the Declaration, without any legal obligations, should be regarded as a Preamble to the Convention.

It is suggested that the Australian Government examines carefully the issues here emphasised, in order to ensure full consideration by the drafting committee and third session of the Commission in May next.

(b) Convention Group 19. This group adopted Annex G of the Drafting Committee report as a basis for consideration of the articles to be included in the first Convention. It was realised at this Session that it would not be possible to draw up a complete convention covering the whole field of human rights and fundamental freedoms, especially as the work of the sub-commission on the articles dealing with Discrimination and Minorities and Freedom of Information of the Press had not been commenced. The Convention under discussion mainly dealt with personal and civil rights, and problems of racial and religious discrimination. It should be regarded as the first of the Conventions only, as problems in other fields such as social and economic rights would have to be dealt with subsequently. As in the case of the Declaration group, the Convention group got immersed in detailed drafting, rather overlooking the fact that the document had to be submitted to Governments for comment, and then to the drafting committee, before it could be regarded in any way as a final draft for submission to the General Assembly.

20. At the outset there was a marked difference of opinion between the United Kingdom representative and the United States observers over the 'limitations' of the rights.

21. Whereas the United Kingdom representative insisted that all the main articles should clearly set out specific limitations, the United States observers desired a general limitation at the end of the Convention, along the lines: 'The full exercise of these rights requires recognition of the rights of others and protection by law of the freedom, general welfare and security of all.' The United States argument was that owing to the various systems of jurisprudence among the participating States, it was impossible to define precisely and exhaustively all limitations.

22. This is an important point to which the attention of the Government might be drawn in submitting its views. Attention is also especially invited to Articles 22[2] and 23[3], texts of which were introduced by the United Kingdom representatives at the very last moment after the work of the Implementation Group had been completed. They should have been submitted to, and considered by, this group, as they obviously came within the field of implementation.

23. Article [24] relates to the duties of a Federal State as regards implementation of the Convention in the domestic field, and as such has considerable interest for Australia. In this group and in the Implementation group, the United States observers indicated that their Government favoured ratification of an international convention before State legislation was in harmony with the articles of any convention, provided it was satisfied that the field was covered by the legislation of the majority of the States, as it would be impossible to obtain uniform legislation by forty-eight States in any reasonable time.

24. The inclusion of Article 23 was advocated most strenuously by the United Kingdom delegation, and the text of the article and the arguments advanced are precisely those submitted before the last General Assembly on the Conventions relating to traffic in women and children.

25. Although this Article 23, (along with Article 22) was adopted by a vote of 10 to nil, it was clear it was reluctantly accepted by several representatives, and it is certain to be closely scrutinised by all Governments when submitting their comment.

(c) Implementation Group 26. The summary records of the Group, though very abbreviated, enable the course of discussions to be followed reasonably well. The Report of the Group (E/600 Appendix C) is, in the opinion of the Australian delegation, one of the most comprehensive reports presented by any United Nations Committee, and clearly sets out the arguments advanced for the establishment of the plan of implementation for human rights.

28.[4] The Group adopted as a basis of discussion paper H. of the Drafting Committee and Secretariat. The delegate from Ukraine early advanced the obstructive view that it was impossible to discuss any implementation proposals until the principles of the Declaration had been defined and accepted by States. Although it was emphasised that the Group would deal only with general principles which would apply whether only two or fifty articles of any convention were agreed on, and that it was not necessary beforehand to know the precise contents of any article, the Ukrainian representative persisted in his opposition and withdrew from the Group. Subsequently his place was taken by the Soviet observer, Professor Koretsky, who had represented his Union in New York at the first session. He voiced strong objection to any scheme of implementation, especially to an international tribunal on the well-known theme that it would impinge on the sovereignty and independence of the States.

29. The United States observer expressed doubts o the following points:-

(i) that if the Convention included machinery to establish an International Court, it might cause difficulty in obtaining ratification;

(ii) that the world was probably not ready to establish an International Court of Human Rights.

30. The United Kingdom observer said his Government was opposed to the setting up of an International Court of Human Rights with special functions, and considered the best solution would be for the present International Court of Justice to be invested with power to give advisory opinions on Human Rights, which could be submitted for action to the General Assembly. Subsequent discussion demolished this view.

31. The representative of India supported in principle the Australian proposal for an international tribunal to deal with Human Rights, but stated her Government believed that it should be a panel or division of the existing International Court of Justice, not so much on grounds of expense or additional United Nations machinery, but because a special court might raise false hopes in the minds of the people of the world that injustices and infringements of Human Rights would be removed automatically.

32. The Belgian delegate originally supported the Indian point of view, but in the course of discussion he accepted the Australian arguments against this, which were briefly:

(i) The Commission on Human Rights was not an organ of the United Nations which could seek an advisory opinion unless it was clothed with specific powers which might be difficult or impossible to obtain.

(ii) Any such opinion would be one pertaining to a legal matter only.

(iii) In the field of Human Rights binding decisions were necessary, which would in time provide a body of law for the settlement of similar cases.

(iv) Any advisory opinion would still entail action by the United Nations.

(v) The existing Court could not deal with the types of case and problems which would arise. In any event, the additional jurisdiction would require an amendment to the Charter.

33. The Belgian representative subsequently proved a most staunch advocate of the Australian proposal, and his position was reinforced by a message from his Prime Minister, M. Spaak, stating that full support should be given by Belgium to the Australian scheme for an International Court of Human Rights, as the arguments were unassailable.

34. The decisions in the Working Group were all practically unanimous, except that the representative of India voted against the proposal for a separate International Court of Human Rights, and adhered to her stand for a Division of the existing Court.

35. The discussion of the report of the Group in the Plenary Session does not call for special comment as it was generally accepted. It was emphasised there by the members of the Group that the plan of implementation had been carefully designed to ensure a balanced and harmonious scheme, and should be examined and criticised as a whole, not only by the Commission, but by Governments.

36. In order to assist the representatives of the Commission who were not on the Working Group to obtain a clear picture of the manner in which the plan would work, the Australian representative gave during the course of the discussion an explanation which is reproduced as a special comment at the beginning of Part II, Annex C, of the Report of the Session. This explanation also sets out the reasons why a separate International Court of Human Rights was deemed necessary by the Group.

37. One other point might be noted. The Report of the Group and the summary records do not make clear the principles agreed on regarding the establishment of the Court itself. These follow generally those submitted by the Australian representative to the First Session and to the Drafting Group. The main departure from the original submission by Australia to be noted are:

(i) The elimination of the appellate Jurisdiction, due to the proposals for the creation of special machinery to deal initially with human rights within the United Nations Organisation;

(ii) The inclusion of a new article to give jurisdiction to the Court to hear and determine disputes referred to it by the machinery mentioned under (a); and disputes arising out of articles in any treaty relating to human rights.

It will thus be seen that this particular provision will cover the desiderata of the Australian Delegation at the Paris Peace Conference, in regard to the peace treaties.[5] The text of the draft as it now stands for consideration by Governments is set out in Appendix I[6] of this report.

Time Table 38. During the final plenary sessions, it was agreed that the three documents embodied in the report of the Commission as a whole to Governments and to the Economic and Social Council, should be known under the one title: [International][7] Bill of Human Rights, consisting of [Annex] A Declaration, [Annex B Covenant on Human Rights] and [Annex] C Measures for Implementation. This may not be regarded as satisfactory, but the discussion on this question was endless, and, needless to say, the last word has by no means been said on this difficult point of terminology. All Governments are to be invited to submit their views to the United Nations as soon as possible, and at least one month before the next meeting of the Drafting Committee, to be held on 1st May in New York. The third Session of the Commission is scheduled to follow immediately on May 17th. The final texts will then be submitted to the Economic and Social Council for its meeting on July, after which the Bill will be presented for consideration by the General Assembly in September, 1948.

[matter omitted]

Attachment ANNEX I Australian Draft Resolution for the Establishment of an International Court of Human Rights '1. There is hereby established an International Court of Human Rights. The Court shall be constituted and shall function in accordance with the Articles contained in this part and in the Statute of the Court.

2. Each of the States accepting the Bill of Human Rights shall comply with the judgment of the Court in any case to which the State is a party and with any order which the Court may make against it.

3. Any judgment or order made by the Court in favour of any person or group of persons within the jurisdiction of any of such States shall be fully effective according to its terms and shall be enforced in and by the State affected by the judgment or order.

4. Each of such States undertakes that the provisions contained in the Bill of Human Rights shall be recognised as fundamental laws and that no law, regulation or official action shall conflict or interfere with those provisions, nor shall any law, regulation or official action prevail over them.

5. The Court shall have jurisdiction to hear and determine:

(a) disputes covering Human Rights and fundamental freedoms referred to it by the Commission on Human Rights;

(b) disputes arising out of Articles affecting human rights in any treaty or convention between States referred to it by parties to the treaty or convention.

6. The Court shall be composed of a body of independent judges, selected according to the standards laid down by the Charter of the United Nations for the election of judges of the International Court of Justice.

7. The Court shall consist of not less than three members appointed in the manner set out in the Statute of the Court.

8. The Court shall make an annual report to the Economic and Social Council of the United Nations on the working of the Court in relation to the rights and freedoms within its jurisdiction. The Court may also make other reports to that Council of and when it thinks proper to do so.'

[1] The session was held from 2-17 December 1947.

[2] Article 22 forbade any activity by persons or states that was aimed at destroying the rights and freedoms prescribed in the instrument.

[3] Article 23 prescribed the method of accession and opened it to members of the United Nations and parties to the statute of the International Court of Justice.

[4] An error in the numbering of the paragraphs is evident here.

[5] Australia had proposed that a European Court of Human Rights be set up by treaty to implement relevant clauses in the peace treaties (see Volume 10, Document 79, paragraph 6). The proposal was defeated at the peace conference.

[6] See attachment to this document.

[7] Words in square brackets corrected from Hodgson's memorandum 17, dated 13 January 1948.

[AA : A1838, 856/13, II]