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American University Law ReviewFall, 1982

*1 THE NEW INTERNATIONAL LAW: PROTECTION OF THE RIGHTS OF INDIVIDUALS RATHERTHAN 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 the1940'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 di-vine rights of kings, the human rights revolution that began at the 1945 San Francisco Conference of theUnited Nations has deprived the sovereign states of the lordly privilege of being the sole possessors of rightsunder international law. States have had to concede to ordinary human beings the status of subjects of inter-national 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 prehis-tory, to the various strands of international law from which this new tapestry was woven. The human rightsrevolution did not appear suddenly full-grown, like Minerva springing from Jupiter's head. Its main sub-stantive rules and its procedural safeguards can be traced back many centuries, to the origin of internationallaw 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 alsoby his family, his clan, his nation, and ultimately his sovereign or state. The Bible documents numerous ap-plications of the old adage an eye for an eye, a tooth for a tooth, or, more often, a life for a life. This rulealso was applied in medieval times, as illustrated in Shakespeare's Romeo and Juliet. Even in modern timesthere have been family feuds in such places as Sicily and Corsica; in the United States, the Hatfields andMcCoys only recently stopped killing one another.

A similar problem arose very early in the international field. Citizens travelling in a foreign countrywere robbed, enslaved, or killed, sometimes by bandits, sometimes by the feudal lords through whose do-mains they travelled, or by the soldiers of the country's ruler, for whom a foreigner was fair game, a sourceof combat booty even if the two countries were not at war. Similarly, mariners frequently looted foreignships travelling on the high seas.

Two sets of rules quickly emerged. First, a state was responsible for what happened within its territoryand for its citizens' conduct on the high seas, and, second, the foreigner's home state was entitled to demandreparations for any resulting injury to its citizens. A citizen, especially a merchant, was a valuable asset, andthose who damaged that asset diminished the wealth of the foreign prince. Accordingly, the perpetratorswere 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-

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sponsibility did arise. The foreign ruler, his assets, and his citizens were deemed to be collectively respons-ible for the damage to the foreign citizen; as a first step, the victim's ruler was entitled to authorize the vic-tim, 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 belong-ing to the state responsible for the wrong.

To mitigate the harshness of this rule, several procedural safeguards were soon devised. Prior to askinghis sovereign for letters of reprisal, a citizen had to attempt to obtain justice from the government of thecountry in which the damage had occurred or whose citizens inflicted the injury. Only when justice wasdenied and further complaints by his sovereign were rejected did reprisals come into play. When capturingthe foreign country's ships on the high seas, the victim was entitled to take only what was due to him. Somecountries, especially France and Great Britain, required strict accounting to the government that issued *3the 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 onthe high seas, not in or near a port. [FN2] The idea of exhaustion of local remedies and denial of justice canbe traced at least to the ninth century, for example, to the treaties between Naples and Benevent in 836 andbetween Emperor Lothar I and Venice in 840. [FN3] Later treaties exempted certain categories of foreigncitizens from reprisals, including scholars, students, and merchants attending fairs. This method of law en-forcement lasted until the nineteenth century; as late as 1858, in the Aves Island case, the United Statesthreatened 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 gov-ernment. 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 ex-

ample, 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 ofVenezuela and forced that country to accept an international arbitration of their citizens' claims arising fromthe Venezuelan civil war. [FN6]

*4 In some of these cases, settlement of the injured citizens' claims was imposed by force on the stateheld responsible for the injuries. In other cases, the matter was submitted for a binding decision to an inter-national claims commission or an arbitral tribunal. Thus, the third stage, decision by an international courtof disputes about violations of foreign citizens' rights, was reached. The Permanent Court of InternationalJustice, 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 ownrightsits 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 hadexhausted the local remedies, his state was not entitled to bring an international claim. In the words of theInternational Court of Justice: [T]he State where the violation has occurred should have an opportunity toredress it by its own means, within the framework of its own domestic legal system. [FN9] As will becomeevident below, the principle of exhaustion of local remedies has been incorporated into the new law of hu-man rights; a claimant must exhaust local remedies without being adequately satisfied before seeking redresson 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 domesticpersecution. Tyrannical conduct of a government towards its subjects and gross mistreatment of national orreligious 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, whereMencius supported the notion of liberation from tyrants. [FN10] In the era of enlightenment, Emerich deVattel stated in his Le Droit des Gens that if persecution is carried out to an intolerable degree . . . all Na-tions may give help to an unfortunate people. [FN11]

Humanitarian intervention has occurred in cases of persecution of minorities, especially in the MiddleEast. Thus, in 1860 the major European powers forced Turkey to accept intervention, in the name ofEurope, by French military forces to protect the Christian population in Lebanon against massacres by theDruses. [FN12] Atrocities in Bulgaria in the 1870's led to Russian intervention, and in the 1878 Treaty ofBerlin, 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 obtaincommercial advantages than by an altruistic motive to alleviate human suffering. In addition, a familiar ar-gument is that humanitarian intervention, being available only to major powers, created a one-sided relation-ship, without possibility of reciprocal action by the smaller powers. [FN14]

Consequently, when the map of Eastern Europe was redrawn after the First World War, responsibilityfor the protection of minorities was taken out of the hands of major powers and transferred to the League ofNations. In his famous 1919 letter to the Polish Government, Georges Clemenceau explained that the GreatPowers would no longer use the right to intervene for political purposes; henceforth, the League of Nationswould 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 neighboringcountries objected that they alone were bound by minority-protection *6 obligations, while the major powershad no similar responsibilities. [FN16] After the Second World War, therefore, an attempt to revive theminority-protection treaties and to vest in the United Nations the authority to guarantee rights under thesetreaties 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 protectingforeigners and minorities have not disappeared completely. In recent years, the protection of foreigners andminorities has become a major concern of the international community. Many of the procedural rules thatwere developed for the protection of foreigners and minorities have found their way into the systems of pro-

tection of human rights established after 1945. In addition, a comparison of the rules of substantive law ap-plied by international arbitral*7 tribunals and claims commissions in the past two centuries with those em-bodied in recent instruments on human rights clearly demonstrates that the new rules owe their content notonly to domestic constitutional provisions but also to international jurisprudence. This is especially true insuch areas as arbitrary arrest, mistreatment of prisoners, access to courts, and adequacy of judicial proceed-ings. Of course, as will be seen, the new international law of human rights extends far beyond the areas tra-ditionally considered proper for international claims.

Similarly, there has been some incorporation of the concept of humanitarian intervention into the UnitedNations' system. After some hesitation, the United Nations agreed that in cases of gross and persistent viola-tions of human rights as a matter of national policy, as in the case of South African apartheid, the UnitedNations 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 do-mestic 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 interventionby 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 anotherstate to protect its own citizens or the local population against gross violations of human rights. [FN22] Al-though many scholars and U.N. statements condemn such unilateral humanitarian intervention, some schol-ars and governments read narrowly the United Nations' prohibition against the use of force. According tothis view, auch action is either a species of self-defense [FN23]especially when uncontrolled mobs attacknationals of another stateor is permissible under article 2(4) of the U.N. Charter if it is interpreted to pro-hibit only the use of force against the territorial integrity or political independence of any state [FN24] andto allow the use of force in any manner consistent with the purposes of the United Nations. Proponents ofthis 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 accomplishingits 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 theUnited 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 pro-visions regarding the use of force by one state against another. For instance, the Declaration on Principles ofInternational Law Concerning Friendly Relations and Co-operation Among States, [FN27] adopted unanim-ously by the General Assembly in *9 1970, makes clear that no state or group of states has the right to in-tervene, 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 ofanother 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 in1945, it is quite clear that apart from a few anomalous cases, in which individuals were allowed to vindicatetheir rights directly on the basis of a special international agreement, individuals were not subjects of rightsand duties under international law. They merely benefited indirectly from the rule that a state could considerany injury to its citizen as an injury to itself and therefore could attempt to obtain reparation for it. Once astate received compensation from another state for the injury to its citizen, however, it had no duty under in-

ternational law to transfer that compensation to the citizen; if, for economic or political reasons, the state re-linquished the claim or settled it for some small percentage of its original amount, its citizen was deprived offurther 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 hadlittle to say about mistreatment of persons by their own government. As noted above, humanitarian interven-tion by another state, if not completely illegal, was often attributable to political or economic interests ratherthan concern about human rights. In many instances, such interventions resulted in the imposition of coloni-al rule. Although perhaps more humane, colonial rule was seldom considered by the people concerned as animprovement over the prior government.




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At the termination of the Second World War, two events completely changed the status of individualsunder international law. Both were closely connected with Nazi actions and with other atrocities committedbefore 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 devel-opment of new standards for the protection of human rights.

The war crimes tribunals [FN29] made it clear that those who committed atrocities against civilian popu-lations of occupied countries were not entitled to invoke as a defense either that they acted for the state orthat they merely followed the orders of their superiors. [FN30] The tribunals pointed out that internationallaw was not concerned solely with the actions of sovereign states, but impose d duties and liabilities uponindividuals as well as upon states. [FN31] The General Assembly of the United Nations later affirmed theseNuremberg principles. [FN32] The International Law Commission incorporated a further formulation of theprinciples into a code of offenses against the peace and security of mankind. [FN33] The final preparationof that code was delayed by disagreement over a definition of aggression, but efforts toward completion ofthe 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 internationalpeace, and therefore give rise to international responsibility. Although *11 work in this area remains incom-plete, there can no longer be doubt that individuals are punishable for committing the crime of war, or warcrimes, or crimes against humanity. In addition, the international community is concerned with such new in-ternational crimes as apartheid, terrorism, hijacking, crimes against foreign diplomats, and first use of nucle-ar weapons. [FN35]

2. Codification of the newly recognized human rights In a parallel development, individuals gained rightsunder 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 humanrights 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 inthe International Covenant on Economic, Social and Cultural Rights; [FN39] and the adoption of*12 somefifty additional declarations and conventions concerning issues of special importance, such as discriminationagainst women, racial discrimination and religious intolerance. [FN40] The pyramid of documents, with theCharter at its apex, has become a veritable internationalization and codification of human rights law, an in-ternational 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 hasbeen raging for almost forty years about their binding character and practical effect. It has been argued, inparticular, 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 fol-low. Furthermore, there are no effective means of implementing the documents, and violators go unpun-

ished. The better view is that these documents have become a part of international customary law and, assuch, are binding on all states. Some of the documents provide appropriate means of implementation, lead-ing to a proper condemnation of violators. Although punishment does not always result, international law asa 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 anymeaningful fashion. States function through individuals, however, and eventually means are likely to befound to punish those who are truly responsible for a state's misbehavior. Although law ideally treats allparties equally, it is well known that the legal enforcement system is less effective against those who arepowerful than with respect to those who are poor and weak. Victor Hugo described this in his great ro-mances, 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 andSwitzerland, for example, had to survive before they were able to impose the law on dissenting states or can-tons. 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 strongersanctions, punishing responsible officers as well as the corporations themselves led to more cautious atti-tudes.

On the international scene, it is difficult to persuade governments, which as a group are the internationallawmakers, to agree on enforcement against themselves in the event that they violate international law. It isnot the law that is soft, but the governments. Usually hiding behind the vital interests of the state, raisondtat,' they find it difficult to declare punishable an act that they may some day wish to commit. Neverthe-less, the world has seen recently in the United States that even a powerful President may be forced to resignif it is apparent that he has committed gross violation of the law. In other countries, the same result is oftenachieved by revolution; it is often forgotten that revolution is an effective sanction. The Universal Declara-tion 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 pro-tected 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 ineffect-iveness, most detractors of the Charter have not reviewed it carefully enough and, thus, do not know clearlywhat it contains. This constitution of the world, the highest instrument in the intertwined hierarchy of inter-national and domestic documents, prevails expressly over all other treaties, and implicitly over all laws, any-where in the world. [FN43] The Charter was not meant to be a temporary document, to be easily and per-petually amended, but, rather, to be a lasting expression of the needs of humanity as a whole. Its basic provi-

sions, constituting the jus cogens, the practically immutable law of*14

the international community, arebroad in scope and sufficiently flexible to permit their interpretation to be adjusted to the needs of each gen-eration. Although the wording of the Charter has changed little since its inceptiononly with respect to themembership of its two executive organsthe meanings of several provisions have been greatly expanded inpractice by commonly accepted interpretations.

As nature abhors a vacuum, constitutional documents abhor strait-jackets. Great ideas cannot be im-prisoned; they must be able to move freely from one part of the earth to another. The U.N. Charter containsseveral such ideas, which revolutionized the world, although no one knew in 1945 how successful thedrafters of the Charter would be in planting in that document the seeds from which many mighty trees wouldgrow.

The most influential of these ideas are that human rights are of international concern, and that the UnitedNations has the duty to promote universal respect for, and observance of, human rights and fundamentalfreedoms for all without distinction as to race, sex, language and religion. [FN44] Although these two ideaswere born out of the disasters of the Second World War, they are even more meaningful today than at thetime they were first formulated. It is our common duty not only to respect human rights ourselves but also topromote their universal respect and to ensure that they are observed throughout the globe. All members ofthe 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 pur-poses. [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, inthe 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 hundrednations, most of them small, would clamor for equality with the fifty nations that dominated the world in1945.

ii. The Universal Declaration of Human Rights

Although the U.N. Charter mentions human rights in many places, time constraints at the San Franciscoconference made it impossible to *15 prepare a more detailed document paralleling the national bills or de-clarations of the rights of man and of the citizen. It was promised at that time, however, that the United Na-tions 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 intoforce, and was asked to prepare such a document. [FN47] It soon became obvious that the task could take along time and, in view of the urgency of the matter, that the first step should be a declaration of general prin-ciples, 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. OnDecember 10, 1948, the General Assembly, after some amendments, approved it unanimously, with eightabstentions: the Soviet bloc, Saudi Arabia, and the Union of South Africa. Although some delegations em-phasized 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 itwas a continuation of the Charter and shared the dignity of that basic document. It merely expressed moreforcefully rules that already were recognized by customary international law. Under the latter view, the De-claration would possess a binding character. [FN50] In particular, Professor Cassin, one of the principal au-thors of the Declaration, explained that the Declaration was destined to guide Governments in the determin-ation of their policy and their national legislation, that it could be considered as an authoritative interpreta-tion 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 whichhad brought human rights within the scope of positive international law. [FN51] The Declaration itself pro-claims that it is a common standard of achievement for all peoples and all nations. It exhorts every indi-vidual 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. Sever-al of the governments that originally were skeptical about the value of the Declaration did not hesitate to in-voke it against other countries. Thus, the United States invoked it in the so-called Russian Wives Case, andthe General Assembly declared that Soviet measures preventing Russian wives from leaving the Soviet Uni-on 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 theDeclaration violated the Charter's prohibition against interference in a state's internal affairs, later voted formany 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 bytwo other unanimously adopted declarations, one relating to the granting of independence to colonial territ-ories 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] inwhich the International Conference on Human Rights proclaimed that the Declaration states a common un-derstanding of the peoples of the world concerning the inalienable and inviolable rights of all members ofthe 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 purposesand 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, spellingout in considerable detail the meaning of the phrase human rights and fundamental freedoms, which Mem-ber States agreed in the Charter to promote and observe. The Universal Declaration has joined the Charter ofthe United Nations *17 as part of the constitutional structure of the world community. The Declaration, asan authoritative listing of human rights, has become a basic component of international customary law, bind-ing on all states, not only on members of the United Nations. Another revolutionary step thus has been takenin 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 requiredetailed explanation. That assumption is, however, confronted by two problems. First, the theoretical natureof 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 hadbeen killed while rebelling against the King. When she was arrested for violating that order, she defendedher action by claiming that the King could not override the immutable, unwritten laws of heaven. The Kingreplied that traitors must be punished; a state must have laws and they must be obeyed in all things, just andunjust 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 theirDeclaration of Independence on the concept of inalienable rights' endowed by their Creator. In the samespirit, the French National Assembly in 1789 set forth in the Declaration of the Rights of Man and of theCitizen 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 mas-ter 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 thevery fact that he is a man. [FN61]

The United Nations' concept of human rights embraces this natural law concept of rights, rights to whichall human beings have been entitled since time immemorial and to which they will continue to be entitled aslong 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 equaland inalienable rights of all members of the human family is the foundation of freedom, justice and peace inthe world. [FN62] More recently, in specifying the guilding concepts for future human rights work withinthe United Nations' system, the General Assembly listed among those concepts the natural law idea that a llhuman 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 evidentwhen a state attempts to limit human rights in the interest of the community during an emergency. Thus, theInternational Covenant on Civil and Political Rights permits states to derogate from certain of its provisionswhen 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 retro-active 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, suchas freedom from compulsory labor, right to liberty and security of person, right to humane treatment in pris-on, right to certain minimum guarantees in criminal proceedings, and freedom from interference with pri-vacy, family, home, or corresponnational and, second, those which the state can limit in order to protect na-tional security, public order (order public), and public health or morals. The second category includes thefollowing rights listed in the Covenant on Civil and Political Rights: the right to liberty of movement; thefreedom to choose one's residence; the right to a public hearing; freedom to manifest one's religion or beliefsin 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 Cov-enant 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 ofpromoting the general welfare in a democratic society. [FN68]

Some scholars may find these differentiations petty. Nevertheless, they show the marriage of positivistand 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 otherpart of the International Bill of Rights, a convention containing precise obligations that would be binding onthe States Parties. There were initial fears that the various rights would drown in a sea of limitations and ex-

ceptiosn, but this danger was avoided by careful delineation of the conditions under which rights could belimited, and identification of those rights that could not be limited under any circumstances. Another diffi-culty did, however, arise. It proved impossible to formulate in a parallel manner all the rights listed in theUniversal Declaration; it became necessary to divide the materials into two categories: civil and politicalrights; and economic, social, and cultural rights. [FN69] These two categories were embodied in two separ-ate Covenantsa name that was preferred to the less solemn conventioneach differing from the other inseveral respects. The main difference was in their treatment after coming into force. States Parties were togive the Covenant on Civil and Political Rights immediate effect through appropriate legislative or othermeasures 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 totake steps, to the maximum of its available resources, toward a progressive realization of the rights recog-

nized in that Covenant. [FN71] The Covenant thus contained a loophole: because a state's obligation waslimited to the resources available to it, a *20 poor state could proceed slowly, progressing only as fast as itsresources permitted. If its resources should diminish, for example, during an economic crisis, its progresscould wane. In contrast, the Covenant on Civil and Political Rights permits no such excuses; a state mustguarantee civil and political rights fully on ratification, [FN72] subject only to the limitations previously dis-cussed. [FN73]

Although doubts have been expressed about the legal force of the Declaration, [FN74] the Covenants arenow 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 Republicof 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 parallelto those in the Covenant on Civil and Political Rights. Two special institutions, the European Commission ofHuman 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 de-cided. In Europe, international decisions on human rights issues thus have become routine; they are nolonger extraordinary occurrences.

This European jurisprudence throws light not only on the provisions of the European Convention, butalso 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 isalso a well-developed inter-American system of human rights, based on the American Convention on Hu-man Rights, [FN78] which entered into force in 1978. The most recent addition to the family of regional hu-man 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 sur-mount differences among various political, economic, and social systems, as well as among widely differingcultures and stages of development. Consequently, only the last factordifferences in stages of develop-ment, especially economic developmentneed be taken into account in applying the Covenant on Econom-ic, Social and Cultural Rights. In contrast, even that factor does not excuse nonimplementation of the Cov-enant on Civil and Political Rights.

The Covenants and national constitutions or laws are meant to coexist. The Covenants do not supersedeany constitutions or laws that provide more protection to individuals. [FN80] Where the Covenants go bey-ond a domestic law in protecting a particular right, the state concerned has the duty to adopt any additionallegislative 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 PoliticalRights is to be implemented through a combination of international and domestic law. Its enforcement reliesin the first place on national institutions, as each State Party has the duty to ensure that any person whoserights under the Covenant have been violated has an effective remedy against the violator and the access forthat 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 enjoymentof the rights recognized in the Covenant, [FN83] but also provides for a Human Rights Committee with jur-isdiction 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 compet-ence of the Committee to receive such complaints. [FN85] Fourteen countries have accepted this jurisdic-tion, including the Federal Republic of Germany and the United Kingdom. [FN86] Twenty-seven states, al-most double the number of those that have accepted interstate jurisdiction, have accepted another imple-mentation measure, an optional protocol allowing individuals claiming to be victims of a violation of theCovenant 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 responsib-ility: a complaint or communication can be presented only when all available domestic remedies have beenexhausted 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 individu-als against arbitrary government action and to ensure individuals the opportunity to participate in govern-ment and other common activities. Promotion and protection of human rights not only leads to good govern-

ment, but is the foundation of freedom, justice and peace in the world. [FN89] To ensure these commonideals, the Covenant was designed to help states improve their domestic *23 laws and institutions so that hu-man rights would be protected throughout the world. Although the Covenant relies primarily on domesticremedies, it also recognizes the new international status of individuals and gives them access to an interna-tional committee, at least against those states that have accepted the optional protocol. As noted earlier, one-sixth of all the states in the world have accepted this direct method of international vindication of individualrights. [FN90] In addition, almost half of the members of the world community have, by becoming parties tothe Covenant, accepted the new international rule that individuals are not mere objects of the provisions ofthe 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 pro-tection limited to the state of his nationality and subject to its whims. Now, for the first time, any among themore than seventy States Parties can complain that another state has violated the rights of one of its own cit-izens. Although similar opportunities had been available in the past, never before have they occurred onsuch a grand scale. Any state can now become an international ombudsman, protecting human rights any-where for purely humanitarian reasons, without any ulterior motives. No longer is this right to intervene onbehalf 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 coun-tries, in which the idea of an ombudsman originated, have begun to act as ombudsmen in the internationalarena. The 1967 case that Denmark, Norway, Sweden, and the Netherlands brought before the EuropeanCommission of Human Rights against Greece is an example of such international humanitarian statesman-

ship. [FN91]

2. Substantive provisions of the Covenant on Civil and Political Rights The Covenant embodies severalgroups of rights. These rights appear in the Covenant in no particular order, although some of the naturalrights, long recognized, are given some priority. Thus, the Covenant appropriately begins with safeguardsrelating to the right to life, the physical integrity of a person, the freedom from slavery and forced labor, thefreedom from arbitrary arrest, the freedom from torture or *24 cruel, inhuman, or degrading treatment orpunishment, and the right to a fair and prompt criminal process, with all necessary safeguards for the indi-vidual's right to an adequate defense. [FN92]

Another group of rights concerns the freedom of movement and residence and the right to leave and toreenter 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 provi-sion specifying that no one should be subjected to arbitrary or unlawful interference with his privacy, fam-ily, home or correspondence, nor to unlawful attacks on his honour or reputation. [FN94] Other familyrights relate to marriage and the status of children. [FN95] Additional provisions concerning families may befound in the Covenant on Economic, Social and Cultural Rights. [FN96] The Covenant on Civil and Politic-al Rights also protects a group of traditional political rights, which includes the freedoms of thought, con-science, expression, assembly, and association, and the rights to participate in public affairs, to vote, and tobe elected. [FN97]

Although the Universal Declaration contained a provision on an individual's right to own property andnot to be arbitrarily deprived of it, [FN98] the great differences among states on this issue precluded inclu-

sion 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 Con-vention [FN99] remedied this defect in 1952 by adding the provision that no one may be deprived of his pos-sessions 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 coun-tries may be in agreement as to what these principles are, *25 much of the rest of the world seems to dis-agree. [FN101]

i. Protections against discrimination

The Covenant on Civil and Political Rights contains several frequently repeated themes. One of them hasits origin in the Charter of the United Nations. The Covenant, in a manner similar to but more expansivethan the U.N. Charter, requires the protection of individusls' rights without distinction of any kind, such asrace, colour, sex, language, religion, political or other opinion, national or social origin, property, birth orother status. [FN102] In addition, the Covenant contains a special undertaking to ensure the equal rights ofmen 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 per-sons shall be equal before the courts and tribunals, and all shall have the right to recognition as persons be-fore the law. [FN105] There shall be equality of rights and responsibilities of spouses as to marriage, duringmarriage and at its dissolution. [FN106]

To promote racial equality, the U.N. General Assembly approved in 1965 a separate Convention on theElimination 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 specialmeasures necessary to ensure that groups adequately advance toward equality. [FN111] States Parties areobliged 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 pub-lic or private. These religious rights are subject to such limitations as may be necessary to protect publicsafety, order, health or morals or the fundamental rights and freedoms of others. [FN114] In 1981, after along period of preparation, the General Assembly approved a Declaration on the Elimination of All Forms ofIntolerance and of Discrimination Based on Religion or Belief. [FN115] The Declaration guarantees, interalia, the following freedoms: to worship or assemble in connection with a religion or belief, and to establishand maintain places for these purposes; to establish and maintain appropriate charitable or humanitarian in-stitutions; and to train, appoint, elect, or designate by succession appropriate leaders as required by any reli-gion 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 itdoes prohibit State Parties from denying to persons belonging to such minorities the right, in communitywith 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 ofminorities' 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 andPolitical Rights, has noted that the relevant provision of the Covenant requires not only measures of protec-tion 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 interestto women. There are, first, several general antidiscrimination conventions that protect women as well as oth-er 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 Educa-tional, Scientific and Cultural Organization (UNESCO) adopted the Convention against Discrimination inEducation [FN122] in 1960. Second, there are several special instruments dealing explicitly with women'srights, such as the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers forWork 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] the1962 United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration ofMarriage, [FN126] and the 1979 United Nations Convention on the Elimination of All Forms of Discrimina-tion against Women. [FN127] These steps, designed to provide equality for half of the human race and thusto overcome prejudices accumulated over many centuries, are as revolutionary as the granting *28 of inde-pendence 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 ofa government. [FN128] The substantive part of the Covenant begins with the statement that no one shall bearbitrarily deprived of life; [FN129] and, in particular, that a state should not condemn a person to deathexcept for the most serious of crimes. [FN130] In addition, states should not impose a death sentence on per-sons below eighteen yars of age, or carry out such a sentence on pregnant women. [FN131] Similarly, underthe Covenant no one shall be subjected to arbitrary arrest or detention; [FN132] a person can be deprivedof 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 claim-ing unlawful arrest or detention is entitled to have a court decide that issue; [FN135] and if the arrest or de-

tention is found to have been unlawful, the individual is entitled to compensation. [FN136] The EuropeanCourt of Human Rights has held prolonged detention to be unlawful and has granted compensation in sever-al 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 pro-cedural safeguards against immigration officers' arbitrary refusal of admission, and the states concernedhave 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 Coven-ant protects against arbitrary governmental conduct in an individual's private domain. A state may not *29interfere 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, variousviews were expressed regarding the meaning of this word. Some participants thought that the word meantillegal, without legal grounds, or without due process of law; according to that view, any act authorizedby law and performed in accordance with prescribed procedural safeguards should not be considered arbit-rary. Others contended that arbitrary meant not only illegal but also unjust, something done capri-ciously, in accordance with someone's will or discretion, in a despotic, imperious, tyrannical, controllingmanner. [FN141] These provisions were meant to be a safeguard against the injustices that a powerful statecan 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 infringeon an individual's rights, be undertaken only on such grounds and in accordance with such procedure as areestablished 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 wordbroadly, applying it not only to statutory law but also to unwritten law, the English common law or equival-ent customary law elsewhere. The Court noted, however, that such unwritten law must be adequately access-ible to all citizens, and should be formulated with sufficient precision,*30 allowing a person to foresee to adegree 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: experienceshows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessiverigidity 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 proced-uresmust follow rules prescribed by law is to circumscribe arbitrary actions by public officials. Therewould 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 hisdiscretion 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 the1935 Danzig Decrees Case. [FN150] The Court pointed out that a provision in the Danzig Constitution, sim-ilar to that in the Covenant requiring that restrictions on individual liberties be imposed only by law, was nota 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 de-prived of his liberty. The Court recognized that the law cannot always regulate every detail; being composedof a system of general definitions, the law sometimes permits a judge to exercise discretion not only in theinterpretation, but also in the application of the law. [FN151] Nevertheless, in some instances, this discre-tionary power is so great as to exceed any definition of reasonable limits. Accordingly, the Court found thelaw in question to be contrary to the Danzig Constitution because it allowed a judge to deprive a person ofliberty even for an act not prohibited by law, if the judge considered the act deserving of punishmentaccording to the fundamental idea of a penal law and according to sound popular feeling. [FN152] The lawaccorded to judges excessive discretion: a person could be punished for an act that he could not recognize inadvance as punishable. [FN153] The Danzig Decrees decision was sound, and it is quite likely that parallelprovisions *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. Insome cases, however, protection might be needed against the acts of private citizens. The Covenant ad-dresses, for instance, the inherent right to life of every human being, and requires that this right be protectedby law. The exact meaning and extent of these provisions are uncertain; essentially, two interpretations arepossible. Either the state is a guarantor of human life and should make an effort to prevent the taking of alife by another individual, a bandit, or a mob; or, the state is at least obliged to apprehend murderers andpunish them adequately in order to deter future murders, not only by the original murderer but also by otherpersons contemplating a murder. When a sate has failed to exercise due diligence to prevent such injury, andlocal remedies have been exhausted without adequate redress or justice has been denied, the law of state re-

sponsibility 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 Rightsexpressed the view that States should be called upon to protect human life against unwarranted actions bypublic 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 therights recognized in theCovenant for all individuals within its territory and subject to its jurisdiction. Al-though most individual murders cannot be prevented, a state should take appropriate measures to prevent in-

juries to individuals whenever a riot or mob violence threatens. A state might also violate the Covenant if itfails 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 ofthe 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] Somecountries consider such provisions contrary*32 to the right of free speech and freedom of information, andhave 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 theleast novel of human rights instruments. It reflects human rights values that have been developing in manycountries of the world since the signing of the Magna Carta. Both old and new national constitutions containsimilar principles. In addition, international arbitral tribunals have applied these principles extensively incases of international responsibility for injuries to aliens. The Covenant and the European Convention, aswell as the inter-American and African instruments, thus contain generally accepted principles that apply notonly to the parties to these instruments, but also to other states. The law of human rights as embodied in theinternational 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 docu-ments do not create new rights; they recognize them. Although the line between codification and develop-ment of international law is a thin one, the consensus on virtually all provisions of the Covenant on Civiland Political Rights is so widespread that they can be considered part of the law of mankind, a jus cogens forall. Thus, an important step has been taken in enlarging the scope of international law and in providing inter-national 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 Re-volutions; the concept of economic and social rights, in comparison, is generally assumed to have originatedin the Russian Revolution of 1917. It was as a counterbalance to the Third International that the Paris PeaceConference established the first international institution for social justice: the International Labour Organisa-tion (ILO). [FN160] The ILO proved to be particularly successful as an international social institution. Overthe 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 PresidentRoosevelt 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 ag-gression), but also freedom from want. The latter requires economic understandings which will secure toevery 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 embracedin his concept of freedom from want. He pointed out that true individual freedom cannot exist withouteconomic security and independence; that p eople who are hungry and out of a job are the stuff of whichdictatorships 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 totalit-arianism could be stopped only by drastic economic and social reforms throughout the world. Although histwo messages were directed primarily to a domestic audience, his words had a worldwide impact, and werenot 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 prob-lems 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 unbeliev-able 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 liv-

ing. [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 WorldWar, 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 thedemand for a just and durable system of peace with the need for a decent standard of living for all individu-al men and women and children in all nations. [FN169] He emphasized that f reedom from fear is etern-ally linked with freedom from want. [FN170] When he said that a nation, no matter how high its generalstandard of living may be, cannot be content . . . if some fraction of its peoplewhether it be one-third orone-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 politicalrights designed to safeguard life and liberty, the time had come, the President believed, to accept some eco-nomic truths as self-evident and, accordingly, to accept a second Bill of Rights, providing a new basis of se-curity 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. Theywere:

The right to a useful and remunerative job in the industries, or shops or farms or mines of the Na-tion;

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 un-

fair 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 un-

employment;The right to a good education. [FN174]

President Roosevelt then challenged the United States to move forward, after the war was won, towardthe 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 in-ternational 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 com-

mon 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 andcultural 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 withthe United Kingdom, the Soviet Union, and China, proposed the insertion into the Charter of several generalreferences to human rights. U.S. Secretary of State Stettinius referred to the Four Freedoms speech at thattime, explaining that freedom from want encompassed the right to work, the right to social security, and theright to opportunity for advancement. [FN176]

*36

Australia later took over the fight for an express mention in the Charter of economic and socialrights, proposing that the members of the United Nations should pledge themselves to take action both na-tional and international for the purpose of securing for all peoples, including their own, improved labourstandards, economic advancement, social security and employment for all who seek it. [FN177] The finaltext of the Charter's preamble speaks of the determination of the peoples of the United Nations to promotesocial progress and better standards of life in larger freedom and to employ international machinery for thepromotion of the economic and social advancement of all peoples. [FN178] Article 55 of the Charter pointsout that the creation of conditions of stability and well-being is essential for peaceful and friendly rela-tions among nations. Accordingly, the United Nations was authorized to promote higher standards of liv-ing, full employment, and conditions of economic and social progress and development. [FN179] Article 55contains parallel provisions for promoting both solutions of international economic, social, health, and re-lated problems; and international cultural and educational co-operation, and universal respect for, and ob-

servance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, orreligion. [FN180]

Because of this emphasis in the Charter, and perhaps because the chairperson of the Drafting Committeewas the President's widow, Eleanor Rooseveltwhom the President had often called his social con-sciencethe Commission on Human Rights included in the Universal Declaration on Human Rights a num-ber of provisions on economic, social, and cultural rights. The section of the Declaration that contains theserights begins with the almost preambular provision that everyone is entitled to realization, through nationaleffort and international co-operation and in accordance with the organization and resources of each State, ofthe economic, social, and cultural rights indispensible for his dignity and the free development of his person-ality. [FN181] Other provisions deal with the rights to work and equal pay, to protection against unemploy-

ment, 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 withpay; the right to an adequate standard of living, including food, clothing, housing, and medical care; theright 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, andartistic production; and the right to a social and international order in which the rights and freedomes setforth in the Declaration, including civil and political as well as economic, social, and cultural rights, couldbe 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 rightswere quite detailed, the Human Rights Commission prepared an even more comprehensive documenttheInternational Covenant on Economic, Social and Cultural Rights. [FN183] This Covenant, completed in1966, 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 ofthe world; they do not belong to just one geographical or ideological group. There is France and the UnitedKingdom, 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 than100 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 onHuman Rights had already made good progress on the Covenant on Civil and Political Rights when Aus-tralia, the Soviet Union, and Yugoslavia proposed that provisions on economic, social, and cultural rights beincluded in the Covenant. [FN187] The Commission initially was reluctant to address that issue, but theGeneral Assembly requested that it proceed. [FN188] When the Commission finally drafted provisions onthe subject, strong opposition surfaced in the Economic and Social Council. Some states announced that theywere unwilling to become parties to a binding instrument such as the Covenant if they would thereby have tocommit themselves to clauses concerning economic, social, and cultural rights. Their argument was thatsuch rights can be guaranteed only by a sound national economy, not by the signing of a document. Otherstates insisted that because the United Nations promised in its Charter to promote economic, social, and cul-tural rights, the Covenant must include such rights. Some participants pointed out that there were importantdifferences between the two categories of rights: civil and political rights could be given prompt legal effectby the adoption of legislation, but economic, social, and cultural rights could be treated only as objectives tobe achieved progressively, as the necessary resources became available. The basic civil and political rightswere 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, pro-motional, and programmatic. [FN189]

As a compromise, it was suggested that two covenants rather than one be drafted, so that differencesbetween the two categories of rights could be taken into account. [FN190] The General Assembly reluct-antly accepted this idea, but insisted on the need for unity, equal protection of all the rights, and, accord-ingly, simultaneous preparation and approval of the two documents. [FN191] When the two documents werepresented to the General Assembly in 1954, they were generally considered to represent a broad compromisebetween differing political, economic, and cultural opinions. Although not ideal, the two drafts were re-garded as fairly satisfactory. It was pointed out that effectiveness of the Covenants would *39 depend asmuch on their acceptability as their content. [FN192] It was thus necessary for the General Assembly to bal-

ance 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 highideals 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 i. The progressive nature of

the Covenant's implementation

The drafters had to solve several other general problems in connection with the introductory clauses tothe Covenant on Economic, Social and Cultural Rights. [FN194] It was agreed first that each State Partyshould undertake to take steps, individually and through international assistance and co-operation, espe-cially economic and technical, to the maximum of its available resources, with a view to achieving progress-ively the full realization of the rights recognized in the present Covenant by all appropriate means, includingparticularly the adoption of legislative measures. [FN195] This was an umbrella provision covering all therights 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 theCovenant, 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 eco-nomic, social, and cultural rights. [FN197] The drafters recognized in particular that many countries do notyet have the necessary resources, and that time would be needed to develop them. To speed up this develop-ment, the text included a gentle hint that states endowed with better resources and technological knowhowshould help their less fortunate brethren. This should be accomplished*40 through international assistanceand co-operation, especially economic and technical. [FN198] Although the Covenant allows states somelatitude regarding the appropriate means' required for the full realization of economic, social, and culturalrights, 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 administrativeframework for the implementation of these policies.

These provisions have been criticized for not going far enough and for being full of loopholes. Criticspointed out that to undertake to take steps' for the realization of rights was not equivalent to guaranteeingthese rights; that a state criticized for doing nothing could always plead lack of resources; and that to allowstates to achieve progressively the realization of the economic, social, and cultural rights would permit in-definite delays. Because the obligations under the Covenant thus could easily be evaded, the value of thedocument was arguably greatly diminished. [FN200]

In defense of the net text, proponents argued that it would have been futile to impose obligations thatcould 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 con-tended that such noncompliance would provide more support for those who claim that international law isnot 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 dis-posal; international economic conditions and terms of trade change constantly and rapidly and are not sub-

ject to the control of any one state. Furthermore, the reference to available resources' and the use of theterm progressively apparently distinguished between developed and developing countries, yet at the sametime 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 alsothe resources that it might be able to obtain from other countries or international institutions. To implementthis 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 thatcould assist such institutions in deciding on international measures likely to contribute to the effective pro-gressive 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 recog-nizes a collective obligation to improve economic, social, and cultural standards, another important step to-ward in interdependent world community.

ii. Guarantees against discriminatory implementation

A general provision imposes on States Parties the obligation to guarantee that the rights enunciated inthe . . . Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, reli-gion, 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 countriesmight be unable to provide immediately for equality of pay between the sexes. [FN205] Unlike most of theother provisions of the Covenant, the antidiscrimination provision is not progressive; it applies as soon as astate ratifies the Covenant. [FN206]

The Covenant includes one exception to the principle of equality, however, and another exception wasaccepted although it is not explicitly mentioned. The Covenant provides expressly that [d]eveloping coun-tries, with due regard to human rights and their national economy, may determine to what extent they wouldguarantee the economic rights recognized in the . . . Covenant to non-nationals. [FN207] This provision wasadopted by an almost evenly divided vote (forty-one to thirty-eight, with twelve abstentions); many delega-tions 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 ar-gued that it was needed both to rectify the inequalities that remained in many countries from the colonial *42era and to remove the strong influence that former colonial masters retained over the national economy ofthose countries. Although not expressly stated, it was generally accepted that the prohibition of discrimina-tion also should not apply to situations in which a country needs to adopt special protective measures, calledaffirmative action in some countries, designed to enable certain socially and educationally underprivilegedgroups to achieve equality. Temporary privileges for such groups constitute badly needed steps towardequality rather than discriminatory actions. [FN208]

In view of the special position of women in many societies, it was also thought desirable to add a specif-ic provisi

westlaw document 01-38-56 (2)

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