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Federal States and the International Protection of Human Rights*

Published online by Cambridge University Press:  20 April 2017

Max Sørensen
Max Sørensen*
Affiliation:
University of Aarhus, Denmark
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Extract

However deep and acrimonious are most contemporary political controversies, the merits of the federal system of government are recognized by adherents of widely different political doctrines and practices. In the most different conditions federalism has established itself as a useful principle for welding together into one political body groups and regions of great diversity. Neither geography nor linguistic, racial or religious differences have proved insurmountable obstacles to political unity. The federal system of government, in dividing powers between one central government and a number of local governments, allows for that diversity in unity which is so attractive a goal for human activities.

Type
Research Article
Information
American Journal of International Law , Volume 46 , Issue 2 , April 1952 , pp. 195 - 218
Copyright
Copyright © American Society of International Law 1952

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Footnotes

*

The manuscript of this article was completed before the Proceedings of the American Society of International Law for 1951 became available to the author.

References

1 Central African Territories: Report of Conference on Closer Association, London, March 1951, Cmd. Paper No. 8233.

2 U. S. Constitution, Art. I, Sec. 10 (treaties, alliances or confederations may not be entered into, and agreements with foreign Powers require the consent of Congress); Constitution of Switzerland, Art. 9 (exceptionally, the Cantons may conclude treaties regarding questions of public economy, neighborship or police relations); Basic Law of German Federal Republic, Art. 32, par. 3 (agreements may be made in matters within the legislative competence of the “Lander” and with the consent of the Federal Government).

3 The Commission on Human Rights has during its seventh session drafted tentative texts regarding these matters, embodied in its report, U.N. Doe. E/1992, Annex I, Arts. 19–32.

4 See Liang, Yuen-li, “Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments,” this Journal, Vol. 45 (1951), p. 108 Google Scholar.

5 James T. Shotwell (ed.), The Origins of the International Labor Organization, Vol. I, pp. 151 ff.; and International Labor Conference, 29th Sess., 1946, Report II (1), Constitutional Questions, pp. 173–186.

6 Shotwell, op. cit., Vol. I, p. 154.

7 Lauterpacht, International Law and Human Rights, p. 360; Fellman, in 275 Annals of the American Academy of Political and Social Science (May 1951), 61 ff.; Fraenkel, ibid., p. 87.

8 U. N. General Assembly, 5th Sess., Official Records, Third Committee, p. 145. Regarding freedom of the press, see also statement by the U. S. representative in the Committee on the Draft Convention on Freedom of Information, U.N. Doc. A/AC.42/SR.23, p. 3.

9 Riesmann, , “The American Constitution and International Labour Legislation,” 44 International Labour Eeview (1941) 123 ff.Google Scholar, particularly at p. 172.

10 International Labor Conference, 34th Sess., 1950, Report III (Pt. III), and 35th Sess., 1951, Report III (Pt. III).

11 U. N. General Assembly, 5th Sess., Official Becords, Third Committee, 292nd meeting, p. 134.

12 Bailey, K. H., “Australia and the International Labour Conventions,” 54 International Labour Eeview 285 ff.Google Scholar, particularly at pp. 298–300.

13 International Labor Conference, 33rd Sess., Beport III (Pt. III), p. 6; 34th Sess., Report III (Pt. Ill), p. 8. Concerning the position in Canada, see Lauterpacht, op. cit., p. 362, note 15, with references.

14 U. N. General Assembly, 5th Sess., Official Eecords, Third Committee, p. 139 (Mexico) and p. 143 (Brazil).

15 For a detailed analysis of the problem see Wheare, K. C., Federal Government (Oxford Univ. Press, 1947), pp. 178 ff.Google Scholar, and Stoke, H. W., The Foreign Belations of the Federal State (The Johns Hopkins Univ. Press, 1931), pp. 103 ff.Google Scholar

16 Scelle, Georges, 46 Becueil des Cours de l’Académie de Droit International (1933, IV) 396–397 Google Scholar. See also Potter, Pitman B., “Inhibitions upon the Treaty-Making Power of the United States,” this Journal, Vol. 28 (1934), pp. 456–474, at p. 470Google Scholar.

17 The Hours of Work Convention, the Weekly Rest Convention, and the Minimum Wage-Fixing-Machinery Convention.

18 Robert B. Stewart in this Journal, Vol. 32 (1938), pp. 57–60; 42 International Labour Review 369, note 28, with reference to Jenks, C. W., “The Present Status of the Bennett Ratifications of International Labour Conventions,” in 15 Canadian Bar Review (1937) 464–477 Google Scholar.

19 Shotwell, op. cit., Vol. I, p. 155.

20 Atty. Gen. for Canada v. Atty. Gen. for Ontario, [1937] A.C. 326, L. C. Green, International Law through the Cases, pp. 312–317. See also on the whole question, Stewart, Eobert B., “Canada and International Labor Conventions,” this Journal, Vol. 32 (1938), pp. 36–62 Google Scholar; K. C. Wheare, op. cit., pp. 184–186; Eobert MacGregor Dawson, The Government of Canada, pp. 115–117; note by MacKenzie, Norman in 18 British Yearbook of International Law (1937) 172–175 Google Scholar.

21 Report of the Eoyal Commission on Dominion-Provincial Eelations, Book II, p. 48; see “The Eowell-Sirosis Report,” 42 International Labour Review (1940) 347–376, at pp. 370–371Google ScholarPubMed.

22 Bex v. Burgess, ex parte Henry (1936), 55 C.L.R. 608. Cf. Bailey, K. H., “Australia and the International Labour Conventions,” 54 International Labour Review (1946) 285–308 Google Scholar, and note in 18 British Yearbook of International Law (1937) 175. Further, K. C. Wheare, op. cit., pp. 183–184.

23 Note by K. H. Bailey in 18 British Yearbook of International Law (1937) 175–177.

24 Guggenheim, , Lehrouch des Völkerrechts, Vol. I, p. 76, note 91Google Scholar; Giacometti, Schweizerisches Bundesstaatsrecht, p. 830. Huber, Jean, Le droit de conclure des traités internationaux (Lausanne, 1951), pp. 65–70 Google Scholar, with references.

25 Message of the Federal Council of Dec. 10, 1920, concerning the resolutions of the first session of the International Labor Conference, quoted by Secretan, , “Swiss Constitutional Problems and the I.L.O.,” 56 International Labour Review (1947) 1–20, at p. 5Google Scholar.

26 Secretan, loc. cit., p. 19.

27 “National Courts and Human Rights—The Fujii Case,” this Journal, Vol. 45 (1951), pp. 62 ff.Google Scholar See also Corwin, Edward S., The Constitution and World Organization (Princeton, 1944), pp. 10 ff.Google Scholar, and The Constitution and What It Means Today (10th ed., 1948), p. 100; Hudson, Manley O., “The Membership of the United States in the International Labor Organization,” International Conciliation, No. 309, April, 1935, pp. 129–130 Google Scholar; Stoke, Harold W., The Foreign Relations of the Federal State (Baltimore, 1931), pp. 105 ff.Google Scholar; Riesmann, David Jr., “The American Constitution and International Labor Legislation,” 44 International Labour Review (1941) 123–193 Google Scholar; Hackworth, Digest of International Law, Vol. V. pp. 17–23; C. C. Hyde, International Law (2nd ed.), Vol. II, pp. 1390–1401; K. C. Wheare, Federal Government, pp. 181–183.

28 Madison in The Federalist, No. XLII (Blackwell’s Political Texts, Oxford, 1948, p. 212).

29 Missouri v. Holland (1920), 252 U. S. 416.

30 Shotwell, op. cit., Vol. I, pp. 152 ff.; Vol. II, p. 373.

31 Riesmann, loc. cit., at p. 155, with references.

32 Hackworth, Digest of International Law, Vol. V, p. 21.

33 Riesmann, loc. cit., at pp. 187 ff.; Pinto, Roger, “Le pouvoir du Sénat Américain en matière de traités,” 2 Revue Internationale de Droit Comparé (1950) 5–26, at p. 16CrossRefGoogle Scholar. See also Phelan in Shotwell, op. cit., Vol. I, p. 156: “… it would have been of no use to have had a system under which the Federal authority, having been recognized as competent, would have refused to ratify conventions because it was reluctant to override the powers of domestic legislation possessed by separate states or provinces.”

34 Jasper B. Shannon, “Political Obstacles to Civil Rights Legislation,” Annals of the American Academy of Political and Social Science, May, 1951, p. 53. Cf. Eoger N. Baldwin, “The International Outlook for Civil Rights,” ibid., pp. 155–161, at p. 159.

35 44 International Labour Review (1941) 192–193.

36 Commission on Human Rights, Report of the Sixth Session (1950), U.N. Doc. E/1687, Annex I, p. 21. See also observations by representatives of Pakistan, Yugoslavia and Denmark during debates in the Third Committee of the General Assembly, 5th Seas., Official Records, pp. 135, 137 and 138; and observations by representatives of Belgium, France, Egypt and Yugoslavia at the United Nations Conference on the Status of Eefugees, July, 1951, U. N. Docs. A/Conf. 2/SR. 30 and 31.

37 Representative of Canada, U. N. General Assembly, 5th Sess., Official Records, Third Committee, p. 136; Norman MacKenzie in 18 British Yearbook of International Law (1937) 174; Shotwell, op. cit., Vol. II, p. 363.

38 Oppenheim, International Law (6th ed.), Vol. I, p. 308; C. C. Hyde, International Law (2nd ed.), Vol. II, p. 949; Haekworth, Digest of International Law, Vol. V, pp. 593–597; Guggenheim, op. cit., Vol. I, p. 277; Harvard Research in International Law, Draft Convention on Responsibility of States, 1929, Art. 3, this Journal, Spec. Supp., Vol. 23 (1929), p. 145; League of Nations, Conference for the Codification of International Law, Bases of Discussion, Vol. III, pp. 121–124 (1929.V.3).

39 Commission on Human Rights, Beport of Seventh Session, U.N. Doc. E/1992, Annex I.

40 Similar considerations were expressed by the U. S. representative in the Fourth General Assembly during discussions relating to the Convention on the Suppression of the Traffic in Persons, Official Records, Sixth Committee, 201st meeting, par. 88.

41 Resolution 421 (V) C, par. 5, of Dec. 4, 1950, General Assembly, 5th Sess., Official Records, Supp. No. 20 (A/1775), p. 42.

42 A useful survey was prepared by the Secretariat in June, 1950 (U.N. Doc. E/1721), pp. 2–13. Cf. also Yuen-li Liang in this Journal, Vol. 45 (1951), pp. 108 ff.

43 E.g., Report of the Committee on the Draft Convention on Freedom of Information, U.N. Doc. A/AC 42/7, p. 46.

44 E.g., Observations of the United States representatives, U. N. General Assembly, 4th Sess., Official Records, Sixth Committee, 201st meeting, p. 405, and 5th Sess., Third Committee, p. 134.

45 Shotwell, op. cit., Vol. I, pp. 145–163.

46 International Labor Conference, 29th Session, 1946, Report II (1), Reports of the Conference Delegation on Constitutional Questions, p. 178.

47 Ibid., p. 177.

48 Cf. the following observations of an I.L.O. Committee of Experts on the Application of Conventions: “… no ratification at all is infinitely preferable to a ratification to which effect is not given both by any necessary legislation and in practical application. An ineffective ratification not only fails to raise or stabilise basic labour conditions but it undermines respect for international obligations solemnly undertaken, reduces respect for international good faith, is unfair to States which respect their obligations and deters such States from undertaking further ratifications, thereby materially reducing social progress.” Int. Labor Conf., 31st Session, 1948, Report III, Appendix, p. 8.

49 Economic and Social Council, Official Eecords, 6th Bess., Supp. No. 1 (U.N. Doc. E/600): Commission on Human Rights, Keport on the Second Session, p. 29.

50 ECOSOC, Official Eecords, 9th Sess., Supp. No. 10 (U.N. Doc. E/1371): Report of the Fifth Session of the Commission on Human Rights, p. 26.

51 Ibid., 11th Sess., Supp. No. 5, Beport of the Sixth Session of the Commission on Human Rights (U.N. Doc. E/1681), p. 21. See also James Simsarian in this Journal, Vol. 45 (1951), p. 175. The federal clause inserted as Art. 41 in the Convention of July 28, 1951, Relating to the Status of Refugees seems to have a similar scope. Cf. the words “With respect to those articles of this convention that come within the legislative jurisdiction of the constituent States …” etc. See also the observations of the U. K. delegate at the U. N. Conference on the Status of Befugees, A/Conf.2/SR.30.

52 Report of Fifth Session (Doe. B/1371), p. 26. At the U. N. Conference on the Status of Refugees a similar provision was adopted upon the proposal of the U. K. representative (A/Conf.2/97). See Article 41(c) of the Convention of July 28, 1951, Eelating to the Status of Refugees.

53 Official Secords, Third Committee, p. 137.

54 Report of the Sixth Session, p. 21.

55 Op. cit., p. 363.

56 U.N. Doc. E/CN.4/636; see also Doe. E/1992, Annex VI, A.V. (p. 127).

57 General Assembly, 5th Sess., Official Eecords, Third Committee, pp. 139, 141–142.