Commentary Magazine


Next Steps After the Charter

The current drive for human rights began to gather strength in the early days of World War II. It was allied with the drive for an international organization that would be powerful enough to stop war. In the flood of designs for world-government that began pouring out in 1940, codes and agencies for enhancing and safe-guarding the liberty and the dignity of man as man have taken prominent place.

This movement, which in a few years has become broad and powerful, has drawn together and revivified initiatives that reach far back into the past. Its fountain-head is the age-old aspiration to equality for all men; its tributaries are the historic revolts against tyranny that have left their record in declarations and bills of rights. Chief among the forces that have swollen it of late has been an accumulating world-wide indignation over the torture and butchery of opposition elements and scape-goat minorities in the Axis countries.

Moral and emotional reaction against barbaric inhumanity has been reinforced by intellectual calculation touching the conditions and the ultimate purpose of more lasting peace. Wars spring from human discontents. Among these discontents there are always basic grievances. To reduce these grievances must be to weaken the forces making for war. And even if peace could be kept between nations without making any direct attempt to improve the position of the individual, there would be little profit if, within the nation, men were left subject to oppression and exploitation. It would be hardly worth while to deliver man from the curse of war if he is to suffer still the curse of tyranny and want.

This is the reasoning that finds its latest and highest confirmation in the Preamble of the United Nations Charter. There, following immediately after the bold statement of determination “to save succeeding generations from the scourge of war” comes the assertion of “faith in fundamental human rights, in the dignity and worth of the human person.” There, too, immediately after the purpose of a just and firm legal order in the community of states, stands the purpose “to promote social progress and better standards of life in larger freedom.” The long struggle to win for the individual freedom and means for the full development of his capacities has thus entered a new phase and taken on a new dimension. Its front becomes as broad as the world, and it shares with the peace-objective the collective energies of the United Nations.

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Past Gains to Build On

Preparing the way for this general advance, many fragmentary gains have already been secured. Only the confirmed pessimist denies that the average lot of the individual has substantially improved since the eighteenth century. Due allowance made for vast areas where the increase of population has kept standards of living as low as they were two hundred years ago, and for sharp temporary aberrations in countries described as “advanced,” the over-all movement has been towards larger freedom and enhanced welfare. Even totalitarian governments, making the individual a means of national greatness rather than an end in himself, have been obliged to pay careful attention to the condition of that means. As for liberal, democratic regimes, they long ago abandoned laissez-faire principles in favor of active intervention to safeguard the citizen against exploitation and privation.

The progress made up to the present in securing the individual against arbitrary and oppressive measures of private or public origin, and against destitution, has been achieved mainly through national legislation and administration. The American and French bills of rights of the eighteenth and nineteeenth centuries, like their English prototypes, were designed to set limits to the invasion of private liberties and interests by public authorities, and to establish the individual’s part in the political process. Some of the early crusaders for human rights were fully aware of the importance of “economic liberty,” and already in 1793 the French Declaration of Rights recognized the duty of the state to provide either work or subsistance. Towards the end of the nineteenth century social insurance began to find a place in national constitutions. This provision is frequently found in twentieth-century fundamental laws, where it is sometimes accompanied by the guarantee of useful employment. Equality of emphasis on economic and political rights is one distinct characteristic of the contemporary as contrasted with earlier campaigns for the enlargement of individual liberties and opportunities. A second is a shift from national to international agencies in proposed methods of achievement.

The appeal to authority over and above the state to secure individual rights is of course far from new. In legal and political discussion from the days of Aristotle to our own times, man, as such, has been described as endowed by “natural law” with certain inalienable attributes. The “law of nature,” often identified partially or completely with “divine law,” has been said to impose upon monarchs and governments an inescapable obligation to respect and defend a group of rights (varying from writer to writer and from time to time) alleged to belong to every man by virtue merely of his humanity. All the positivistic and analytical jurisprudence of the nineteeth century was unable to eradicate, though for a time it overshadowed, this notion of a higher law not made by States. Within the last twenty-five years, eminent jurists have set themselves the task of reinvigorating this notion. Some, indeed, have undertaken to convince the world of lawyers that natural law is no mere notion, no mere moral standard by which to gauge the justice of national legislation, but a real, imperative and basic part of all legal systems.

The contemporary movement will doubtless continue to invoke the age-long doctrine of natural law in support of its demands for fuller and less fragile human rights. No one who wishes the movement well will begrudge it any respect and support that it may win by this reference to universal and supreme reason, whatever he may think of the nature of “natural law.” But we now know beyond all doubt that something less vague and intangible than “natural law” is needed to secure national compliance with any general standard of liberties and opportunities for the individual.

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Versailles and After

The new thing in the contemporary movement is the effort to establish a universal bill of rights as part of international law, and to organize internationally for its enforcement. Traces of this shift may be found in the nineteenth-century doctrines of “humanitarian intervention,” which sought to justify action (including the use of force, if necessary) by foreign governments to prevent any state from treating inhumanly its minorities. But the systematic development begins with the treaties following the last war. The minorities treaties, and Part XIII of the Treaty of Versailles establishing the International Labor Organization, mark the characteristic direction of the new effort.

The minorities treaties bound only new states formed as a result of the war, and were designed to benefit only racial, linguistic and religious minorities. They were occasioned by the disapproval, in the Allied countries, of the political, civil and cultural discrimination long suffered in various parts of Europe by groups differing in one or more of the three particulars mentioned from the ruling majority in the state to which they were subject. Such discrimination was regarded not only as an offense to the conscience of mankind, but as a danger to peace. The treaties stipulated equality of treatment for the minorities, and assigned to the Council of the League of Nations the duty of securing their fulfillment.

In some important cases the minorities system under the League was able to alleviate oppression. In others it clearly, failed. Its failure may be traced partly to defects in machinery which gave the minorities wholly inadequate means of bringing their grievances before the Council, and which left in doubt the Council’s collective responsibility for supervision and action. But these defects could have been remedied in a flourishing organization for peace. The weakness of the minorities system was essentially just one aspect of the general weakness of the League. That fact is significant for the future. It suggests an intimate connection between the fortunes of a universal bill of rights and those of an international organization.

In another segment of the human-rights front, that of labor conditions, the treaties following World War I laid the groundwork for another and more successful advance. Article 23 of the Covenant bound the members of the League of Nations to “endeavor to secure and maintain fair and humane conditions of labor for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend.” For this purpose the members undertook to “establish and maintain the necessary international organizations.” To carry out these obligations, the International Labor Organization was created by Part XIII of the Treaty of Versailles.

The Constitution of the International Labor Organization did not contain any code of labor law. In its first sentence it proclaims the dependence of peace upon social justice and cites the existence of labor conditions which involve so much injustice and hardship that they imperil the harmony of nations. Among its guiding principles, it declares that labor should not be regarded “merely as a commodity or article of commerce,” that employed as well as employers should have the right of association for all lawful purposes, and that wages should be paid “adequate to maintain a reasonable standard of life.” Only a general program is sketched, enumerating such objectives as the regulation of hours of labor, stability of employment, social security, an adequate living wage, freedom of association, and vocational education. The rest of the Constitution is given over to the machinery and methods by which these objectives are to be reached.

Implementing these briefly stated principles and program, the International Labor Organization bit by bit over a period of twenty years elaborated an extensive labor code which has found acceptance in many countries. Undeterred by conditions that might have been expected to paralyze it, the Organization continued its work throughout the war. Its Conference at Philadelphia in 1944 adopted a Declaration which expands its original function and asserts its resolve to participate, without limitation to labor conditions, in the general drive for fuller individual liberties and rights.

It is imperative for those engaged in the promotion of human rights to study the record, the methods, and the plans of the International Labor Organization. This has been and will be one of the most effective agencies working in the field, and the procedures by which it has won its objectives in the past hold many a lesson for the proposed United Nations Commission on Human Rights.

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Toward Positive Human Rights

Two chains of events explain the sudden prominence of private rights in peace aims after the outbreak of World War II. One of these—the treatment of Jews and of opposition elements in Fascist countries and the horror that spread around the world over these barbarities—has already been mentioned. The other was the long series of economic catastrophes which, from 1930 on, carried unemployment, destitution, and demoralization far and wide among the nations. As the war drew in more and more countries, it came to be described as a struggle for a world in which the individual would have more safety, more freedom, and more food. President Roosevelt’s message to Congress in January, 1941, with its “Four Freedoms” (of worship, of speech, from want, from fear) caught the imagination of the peoples fighting Nazism as nothing else had. In the Atlantic Charter of August 14, 1941, and the Declaration of the United Nations of January 1, 1942, these aims became a part of the common covenant of the States aligned against the Axis. From that point, through the Teheran Declaration of December 1, 1943, and the Dumbarton Oaks text of October 9, 1944, up to the Charter of the United Nations signed at San Francisco on June 26, 1945, the line of progression is clear.

The development was not suspended to wait for implementation of the Charter. There is a heartening pertinacity and consistency in the official championship of human rights by the principal Allied Powers. The conditions laid down for Germany by the Berlin Conference on August 2, 1945, call for the repeal of all Nazi laws which “established discrimination on grounds of race, creed or political opinion,” for the abolition of such discrimination, and for the reorganization of the judicial system “in accordance with the principles of democracy, of justice under law, and of equal rights for all citizens without distinction of race, nationality, or religion.”

The terms offered to Japan by the United States, Great Britian, and China from Potsdam on July 26, 1945, require the Japanese government to “remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights, shall be established.”

Such, in broad outline, are the history and character of the movement for human rights. Some victories in detail have been won, the new universal objectives have been officially stated, and official plans have been laid for an organization to direct what is now regarded as one of the principal tasks of the United Nations. How can this organization do most to guard men and women, wherever they need guarding, from a repetition of the cruelty and the want which have been the lot of so many in the last decade?

Where do we go from here?

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Inadequacies of the Charter

“Human rights,” “fundamental freedoms,” and “better standards of life” are familiar terms in the San Francisco Charter. They occur in the Preamble, and in Articles 1, 13, 55, 62, 68, and 76. But they are not defined. Nowhere does the document say bluntly that all members shall see to it that their peoples have freedom of speech and religion. Much of the text is devoted to organization designed to prevent war and so to lighten man’s burden of fear, or designed to develop industry and trade and so to relieve him of want; but President Roosevelt’s freedom from fear and freedom from want do not appear in so many words. Neither is any elaborate machinery set up for the specific enforcement of human rights. There is, indeed, no word of enforcement.

The Charter, then, contains no bill, declaration, or code of human rights, and sets up little or nothing of that system of courts and police on which—at least in democratic countries—we rely so heavily for safety and freedom. Some hoped that the Conference would promulgate a code, and various elaborate lists of rights, some with appropriate plans of enforcement, were communicated to it. The Conference, wisely I think, refused to go into detail.

What it did was firmly to enshrine the promotion of human rights among the principal purposes of the United Nations. Whether the text quite satisfies the draftsmen of the Philadelphia Declaration, who wanted this to be “the central aim of national and international policy,” hardly matters; for, as no straight boundary line can be drawn between measures to keep the peace and measures to promote fundamental rights, so no consistent priority can be assigned to either. They are different facets of the same general problem.

Having proclaimed the purpose, the Conference made it a duty of the General Assembly of the United Nations to “initiate studies and make recommendations for the purpose of . . . promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all. . . .” Turning to Article 62, we find that the same function is assigned to the Economic and Social Council. Further on, in Article 68, the Economic and Social Council is instructed to set up a commission “for the promotion of human rights.” Finally, in Article 76, a duty to promote the rights and liberties of the individual, this time in relation to the populations of “trust territories,” is laid upon the Trusteeship System, the specific agency here being the Trusteeship Council operating under the General Assembly.

At first glance, these arrangements appear disjointed and overlapping. In practice they can be expected to fall into a pretty clear pattern. The “prime mover” in the works should be the commission set up by the Economic and Social Council. Let us call it the “Commission on Human Rights.” It will be responsible to the Economic and Social Council which in turn is responsible to the General Assembly. The Trusteeship Council is instructed (Article 91) to collaborate with the Economic and Social Council and is itself responsible to the General Assembly (Article 85).

Holding the whole machinery together, then, and supervising its operation, is the General Assembly. But the one body whose special and total function is the promotion of human rights is the Commission, and upon this body should fall the primary task of advising on policy, proposing and drafting measures, and examining reports. How will the Commission operate?

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A Bill of Rights?

One of the first decisions of the Commission ought to be whether or not it should draft a general statement of human rights. If it favors a general statement, it will then immediately have to decide whether this should take the form of a universal code which all States would be invited to adopt and enforce, or of a mere declaration of principles which the members of the United Nations might agree to implement as speedily as the particular circumstances of each member would permit.

A good many people think it obvious that a universal code should be established at once. In an interesting and persuasive book Professor Lauterpacht gives his powerful support to this view. More than that, he provides a draft which will merit careful study by the Commission on Human Rights. The book was written before the San Francisco Conference, and the author recommended that the “Council of the United Nations” should be “the supreme agency for securing the observance of the International Bill of the Rights of Man,” and that the Council should take any necessary political, economic, or military action if any State persisted in violation of the Bill.

The San Francisco Charter does not assign to the Security Council any specific function in the matter of human rights. Nor has the General Assembly any powers of enforcement. The Security Council is indeed impowered to take such economic or political action “as may be necessary to maintain or restore international peace and security” (Articles 41-42), and this provision might well come into operation in cases where the invasion of individual rights constituted a threat to the peace. But Professor Lauterpacht, I fear, goes too fast and too far. His proposals would defeat his own ends. A code offering the civic, social, and economic rights which his does, and backed by all the sanctions in the Security Council’s arsenal, would frighten off many States, even some with relatively high standards of liberty and welfare. There is little prospect that anything at once so comprehensive and so compulsory would in any near future rally the general consent necessary to make it law.

There would be more chance of success if we were content to leave out rights to work, to social security, to education, and to a democratic system of government, confining ourselves to the more familiar negative rights such as freedom of speech and religion, freedom from arbitrary arrest and retroactive laws, and freedom from discrimination on grounds of race, religion, or sex. These are termed “negative” because they call mainly for abstentions rather than for positive action on the part of governments, whereas work, social security, education, and democracy impose upon the State a duty of elaborate planning and administration. The negative rights have the advantage also of making no direct addition to State budgets. But in this fifth decade of the twentieth century, after two world wars and the intervening catastrophe of economic depression, a bill of rights so limited would be of interest chiefly to antiquarians. It would altogether fail to satisfy the demand which activates the present drive.

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A Declaration of Rights?

Supposing, then, that the Commission on Human Rights were to conclude that any code which would at present win general acceptance would be regarded rather as mockery than as satisfaction—should it favor the alternative of a statement of principles to which all members of the United Nations could subscribe? Such a statement could include all the social, economic, and political objectives of the contemporary champions of human rights, in addition to what we may call the “classical freedoms” aimed at in earlier phases of the movement. In content, then, it would satisfy the current demand. Its weakness would be its lack of compulsory quality. The total obligation of the subscribing countries would be to make a serious effort to bring the stated rights into practice. “Serious effort” is an elusive standard, difficult to apply anywhere, but especially so in the international field.

Despite this weakness, the idea of a general statement has many advocates. These emphasize the advantages of a known goal, and the moral influence of great principles officially promulgated. They cite the long, benign development of the constitutional law of the United States and of Britain under the inspiration of historic declarations which in the beginning were nothing more than broad and unsanctioned generalizations.

If the Commission on Human Rights finds these considerations conclusive, it can draw upon a considerable volume of preparatory work in drafting its general statement. What Professor Lauterpacht presents as an International Bill of Rights might with minor alterations serve as the text of a less compulsory International Declaration. The report on the problem issued in 1944 by the Commission to Study the Organization of Peace will be a useful contribution. Certainly the Commission should consider the “Statement of Essential Human Rights” drafted on the initiative of the American Law Institute and circulated by Americans United for World Organization, Inc. The American Law Institute’s committee was made up of persons drawn from American, European, and Asiatic cultures, and its work therefore can lay claim to a basis broader than the thought and ideals of one civilization. It proceeded in full knowledge of the provisions concerning individual rights incorporated in national constitutions, and the voluminous documentation collected and digested for this purpose could doubtless be made available to the United Nations Commission on Human Rights.

Yet it remains debatable whether a general statement should be promulgated. Because it would be devoid of strict legal authority and unsupported by specific procedures of enforcement, the comparison between its theoretical perfection and the shortcomings of national performance might engender disillusionment. The common man, for whose benefit the whole enterprise is intended, would probably think of the stated principles as rights or nothing. “Objectives,” “ideals,” or “standards” not translated into enforceable rights would give him little satisfaction.

The Commission on Human Rights will doubtless understand that its purpose is not a neatly rounded job, but the substantial advancement of individual liberties and opportunities. It will therefore have to consider carefully whether it can do most for living human beings by setting up an ideal statement of rights at which all States can aim, or by concentrating its energies seriatim on securing the actual application of specific rights selected one after the other by reference both to their urgency and their possibility. Conceivably it might combine the two methods, stating all its objectives first and then proceeding piece-meal to their achievement. For the reasons indicated in the preceding paragraph, I am inclined to believe that it will be wiser to proceed, as the International Labor Organization has done, without setting up in advance any general statement in the form either of code or of declaration of principles and objectives.

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A Program of Priorities

It will be quite possible for the Commission on Human Rights to work out an order of priority in its program. If we were thinking primarily of present needs, we should put economic rights at the very top of the list. Immediate postwar relief is the imperative task of the moment, and the effort now being devoted to it is surely a convincing demonstration of the whole world’s concern in the economic plight of the individual everywhere. But this is the business of other agencies. The task of the Commission on Human Rights is a long-term task.

It might profitably take as the first focus of its attention the matter of race discrimination. There is something like official unanimity of opposition to this species of primitive prejudice. Few governments would dare to reject an agreement aiming at effective control. The San Francisco Charter may itself be regarded as a convention to abolish discrimination on grounds of race, religion, or sex. But this carries us little beyond the establishment of the principle of equality, and meanwhile, from many parts of Europe and America, come substantiated reports of resurgent race-hatred. A strong case can be made out on grounds of peace and humanity alike for an immediate and determined attack on this problem. It would then be clear from the outset that every right subsequently established belongs at once to all, without distinction of blood.

Whether or not religious discrimination should be attacked at the same time is a tactical question for the Commission. Its abolition cannot be distinguished from freedom of religion. It should not be taken for granted, because the San Francisco Charter lumps together discriminations on grounds of race, religion, and sex, that prevention is equally urgent in all three or that the task is indivisible in terms of immediate feasibility.

After the onslaught on racial discrimination, the Commission might attack arbitrary arrest and imprisonment. Coupled with freedom from these types of administrative tyranny is the right to speedy and fair trial. Any success in securing these benefits will pro tanto destroy the underpinnings of absolutism.

Following closely in order of priority would come the freedom to hold and communicate opinions. Like fair trial and freedom from arbitrary detention, the freedom of opinion and speech is incompatible with Nazism. Both items are essential steps in the establishment of democracy. Both, because of the close relation between absolutism and aggression, may claim high priority in the interests of international security as well as for their importance to the dignity and development of human personality.

Only after it has made good progress in the tasks already mentioned should the Commission undertake the direct promotion of democratic political organization. Why this delay, it may be asked, when the United States and Britain are already insisting on free elections in Poland, Bulgaria, and Greece? The answer is that when the Commission reaches this stage in its work it will be concerned not merely with countries which we have defeated in war or liberated from enemy occupation, where the vigorous supervision of restorative processes is therefore to be expected, but with all countries. There are among the United Nations countries with magnificently democratic constitutions where the citizen has no effective part in government and no protection against the abuse of authority. It will be difficult enough, as a first step, to secure for the individual in these countries the primary liberties of the person without attempting the complete and immediate reform of their entire systems of government.

As for the economic and social demands to work, social security, and education, few if any countries, even among those which have reached the highest standards of living, have yet transformed all of these into enforceable rights. The way to their general realization will be long and difficult. Here, moreover, the Commission will be wise to recommend a delegation of function. For more than twenty years the International Labor Organization carried on successful work in the broad field of conditions of employment. There is no other international agency so well qualified by organization and experience for the tremendous enterprise of securing for the individual the highest stability of employment and the highest degree of freedom from want that the economic resources of his country can provide. Much of its success will depend on that of other agencies, such as those planned in the Bretton Woods agreements and the Food and Agriculture Organization; but here surely is the instrumentality best fitted to provide that the benefits of these new institutions reach down to the individual all over the world.

In the matter of education, a specialized international agency is in process of creation. The Commission on Human Rights will, it is to be expected, work through this agency in any attempt to broaden the educational opportunities of the individual. But here again, when the question is one of vocational training, full use should be made of the knowledge and experience already gained by the International Labor Organization.

Wherever the Commission believes it wise to draft a convention, careful provision should be made for international action against States in default. An essential part of this will be a right of petition by individuals or groups to the Commission itself. But in order to make sure that the right to petition is actually available, the Commission will need a staff of field investigators. Only when the work of such investigators is regarded in all countries not as an offense, but as a matter of course, shall we have a reliable international system of human rights. It will not be easy to reach this point. Protests of outraged sovereignty and of invasion of domestic jurisdiction will bar the way. But if the San Francisco Charter has not taken the liberties of the individual out of the exclusive realm of domestic jurisdiction, then its high-sounding principles will indeed remain a mockery.

What shall the penalties be? These we must leave for the Commission to work out in suitable form and proportion for each of its conventions. But no doubt should be left that where the whole process of elaborating and ratifying a convention has been completed, and a State party persistently violates its obligations, any sanction available to the United Nations, and necessary to secure compliance, will be brought to bear.

As the system is developed, it is inevitable that many difficult legal questions touching the interpretation and application of conventions will present themselves. The highest tribunal of the United Nations should, and doubtless will, be open for adjudication. Probably, in the conventions themselves, the parties will agree to compulsory jurisdiction for this purpose. Under the constitution of the International Labor Organization members accepted in advance the jurisdiction of the Permanent Court of International Justice in complaints arising out of non-fulfillment of their obligations. Unfortunately Article 34 of the Statute of the new International Court of Justice, repeating a rule in the Statute of the previous World Court, declares that “Only States may be parties in cases before the Court.” This means that no injured individual or group may summon an opposing State before this tribunal. Only another State can do this.

This is merely one manifestation of the doctrine, which still prevails among governments, that the individual as such is not a subject of international law. A great deal of respect is due to the view that the International Court of Justice should not be besieged with frivolous complaints. To allow this to happen might be bad for the Court and bad for any prospective international system of human rights. It might therefore be expedient to prohibit access to the Court save with the approval of a State or the Commission on Human Rights. The rule might even be that every case brought before the Court must be conducted by a State or by the Commission. But the effective international enforcement of individual rights must inevitably, I believe, involve the recognition of the individual as the party before the Court.

Proceedings before international tribunals arising out of injuries to individuals have been bedeviled in the past by confusion between the State, as the legal party, and the individual who actually suffered the wrong and for whom compensation is sought. The theory which regards the State alone as subject of rights and duties assessable by an international court would make it logically necessary to consider exclusively the injury done to the State by the wrong which its national has suffered. Amongst other absurd artificialities which this legalism has imposed on the proceedings, has been a totally irrational measure of compensation and penalties. Arbiters have been on the one hand unwilling to limit their awards to the largely imaginary sufferings of that abstract entity, the State, and on the other unable to break clean away from the legal tradition and adapt the compensation to the needs of the human victim.

Surely it is safe to predict that, in cases where it becomes necessary to carry to an international court the injuries suffered by men and women through violation by their State of rights internationally guaranteed, this kind of artificiality will not long be endured. Let complaints, if they must, be filtered through State or Commission; but once they have reached court, let it be clear that the judges are dealing with living flesh, not with intellectual abstractions.

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