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.

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