Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-27T07:51:09.092Z Has data issue: false hasContentIssue false
  • English
  • Français

Procedural due Process in Human Rights Fact-Finding by International Agencies

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck  and
H. Scott Fairley
H. Scott Fairley
Affiliation:
Center for International Studies, New York University
Get access Rights & Permissions [Opens in a new window]

Extract

Most international organizations lack law-enforcing sanctions or, having them in legal theory, are reluctant to invoke them in practice. Instead, they increasingly resort to fact-finding.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 2 , April 1980 , pp. 308 - 345
Copyright
Copyright © American Society of International Law 1980

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 One former UN official dates the firm establishment of fact-finding as a technique in the protection of human rights to 1967. Miller, United Nations Fact-Finding Missions in the Field of Human Rights, [1970-73] Aust. Y.B. Intl L. 40. However, fact-finding is not a recent invention. See The Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907 in Foreign Relations Of The United States, 1899, at 521 (1901) and Foreign Relations of the United States, 1907, pt. II, at 1181 (1910); and such early fact-finding inquiries as those of the Dogger Bank case, Hague Ct. Rep. (Scott) 403 (1916), and the Tubantia case, id. at 143 (1932).

2 Fact-finding groups are now rarely sent merely to gather raw data. Miller, supra note 1, at 41-42. However, Article 14 of the 1899 Hague Convention, supra note 1, at 524, provided that an inquiry commission should only determine the facts without rendering a decision as to responsibility.

3 Miller, supra note 1. Reciprocally, judicial proceedings before the International Court of Justice have involved that tribunal in intricate fact determinations, as in the Temple of Preah Vihear case ([1962] ICJ Rep. 6) and in the Western Sahara Advisory Opinion ([1975] ICJ Rep. 12

4 The United Nations through various instrumentalities has conducted, supervised or observed self determination plebiscites or otherwise ascertained the wishes of indige nous populations in British Togoland, British Cameroons, the Belgian trust territory of Ruanda-Urundi, New Zealand-administered Western Samoa and the Cook Islands, French Togoland, the U.S. Pacific Trust Territory, and the Malaysian states of North Borneo and Sarawak. South Africa allowed a visit by the chairman and vice chairman of the Special Committee on South West Africa established by the General Assembly in 1961. Israel has permitted UNESCO fact finders to visit the West Bank. Zaire (then the Congo) permitted UN on-the-spot investigation of the death of Dag Hammarskjold and the Republic of (South) Vietnam permitted a UN team to investigate allegations of discrimination against Buddhists. The United Nations also sent a mission to report on the alleged invasion of Guinea by Portuguese forces in 1970. This list does not include the day-to-day fact-finding of the various UN peacekeeping, truce supervisory, and other observer forces.

5 Miller, supra note 1, at 41.

6 van Boven, Fact-Finding in the Field of Human Rights, 3 Israel Y.B. on Humanrights 93, 106 (1973)

7 S. D. Bailey, U.N. Fact-Finding and Human Rights Complaints, 48 Intl Aff. 250, 256 (1972)

8 In an unabashedly pro-Israeli account of the human rights situation in the occupied territories, it is asserted that there has been no lack of attempts by the Arab states and their supporters to ? impugn Israel's regard for and recognition of human rights. . . . This has been particularly the case in the forum of the United Nations. . . . Together with the states linked to them by religion, interest, and policy, the Arab states are well able to conduct a running campaign of political warfare in the form of resolutions condemnatory of Israel's administration of the occupied territories. Greenspan, Human Rights in the Territories Occupied by Israel, 12 Santa Clara Law. 377, 377 (1972). See also Shefi, The Protection of Human Rights in Areas Administered by Israel: United Nations Findings and Reality, 3 Israel Y.B. on Human Rights 337 (1973); Carey, , The United Nations' Double Standard on Human Rights Complaints, 60 AJIL 792 (1966)CrossRefGoogle Scholar.

9 van Boven, supra note 6.

10 In 1966, a U.S. observer of the process complained of a “paradox“: Persons complaining about South Africa may petition the United Nations in writing, charging that government with denials of human rights, receive a hearing and have both their written and oral testimony mimeographed and circulated to 117 Member States and nearly 200 libraries in various countries. All other persons complaining of human rights violations by their own government rather than by a foreign or colonial government are told the United Nations cannot help them. Carey, supra note 8, at 792.

11 Id. at 795, 799.

12 Thus, Israel was able to attack the credibility of the special committee established in 1968 by the General Assembly to examine certain practices of the authorities in the West Bank (GA Res. 2443, 23 UN GAOR, Supp. (No. 18) 50, UN Doc. A/7218(1969)) because the committee had been established solely to investigate one nation's alleged culpability and could not, for example, examine the validity of Israeli charge of worse treatment by certain Arab states of their Jewish populations. Shefi, supranote 8, at 339-40. For the committee's report, see Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of theOccupied Territories, UN Doc. A/8089 (1970).

13 Respect for human rights in armed conflicts: report of the Secretary-General 77, UN Doc. A/8052 (1970).

14 van Boven, supra note 6, at 117.

15 Id. at 112.

16 See T. Franck, the Structure of Impartiality (1968).

17 Bailey, supra note 7, at 263.

18 Ibid.

19 Commission on Human Rights, Res. 2 (XXIII), UN Doc. E/CN.4/950, at 6 (1967).

20 The majority of members appointed were government officials: Ambassador Ibrahim Boye, Permanent Representative of Senegal to the United Nations, N. N. Jha, First Secretary of the Permanent Mission of India to the United Nations, and Waldo E. Waldron-Ramsey, Counsellor of the Permanent Mission of Tanzania to the United Nations. A fourth member, Luis Marchand-Stens, was a Peruvian professor of law then serving in his country's embassy in Washington. Id. at 45.

21 The mission was established by GA Res. 2443, supra note 12. For appointmentof members, see Note by the Secretary-General, UN Doc. A/7495/Add.3 (1969).

22 Shefi, supra note 8, at 338. The Israeli position was put in the form of a protest to the United Nations; see UN Doc. A/7495/Add.l (1969).

23 Miller, supra note 1, at 48.

24 C. W. Jenks, The International Protection of Trade Union Rights, in the Internationalprotection of Human Rights 210, 239 (ed. Luard 1967).

25 See ECOSOC, 56 Social Committee, 2 Summary Records, at 169, UN Doc. E/AC.7/SR.749 (1974); Report of the Working Group established under Resolution 14 (XXVII) of the Commission on Human Rights, UN Doc. E/CN.4/1086 (1972), at 4, para. 10.

22 UN Doc. E/CN.4/1086 (1972), Annex, rule 4.

27 UN Doc. E/CN.4/1021/Rev.l (1970), at 5, rule

28 UN Doc. E/CN.4/1086 (1972), at 4, rule 6. The scope of the rule was thereforerestricted to members acting in their individual capacities.

29 van Boven, supra note 6, at 102. For Israeli Government comment, see UN Docs.E/CN.4/1016 (1970), para. 9; E/4816 (1970), para. 190, 48 ESCOR, Supp. (No. 5) 49; A/8089 (1970), para. 11.>

30 Bailey, supra note 7, at 26.

31 GA Res. 2443, supra note 12.

32 See comments by the South African Government on the first report of the Groupof Experts, UN Doc. E/CN.4/950 (1967), paras. 36-60.

33 van Boven, supra note 6, at 103.

34 Respect for Human Rights in Armed Conflicts: Comments by Governments on the reports of the Secretary-General, UN Doc. A/8313/Add.l (1971), at 3.

35 For examples of far-reaching recommendations, see ILO, the Trade Union Situation in Chile: Report of the Fact-Finding and Conciliation Commission on Freedom of Association 118-22, paras. 525-43 (prov. ed. 1).

36 Draft model rules of procedure for United Nations bodies dealing with violations of human rights, UN Doc. E/CN.4/1021/Rev.l (1970), at 4, 13, rule 25 [hereinafter cited as Draft rules].

37 Report of Working Group under Res. 14, supra note 25, at 8, para.31.

38 lbid.; UN Doc. E/CN.4/1134 (1974), at 7, rule 20.

39 Bailey, supra note 7, at 250.

40 An instance is the detailed refutation of very specific facts found in respect of the Israeli occupation's effect on named individuals after the fact finders had reached their conclusions on the basis of the partial evidence presented by Arab witnesses. Shefi, supra note 8, at 342-60; Greenspan, supra note 8, at 380-85.

41 Compare, Carey, supra note 8, at 792-93; Bilder, The International Promotion of Human Rights: A Current Assessment, 58 AJIL 728 (1964).

42 See Kaufman, The Necessity for Rules of Procedure in Ad Hoc United Nations Investigations, 18 Am. U.L. Rev. 739 (1969).

43 Ermacora, , International Enquiry Commissions in the Field of Human Rights, 1 Human Rights J. 180, 192 (1968)Google Scholar.

44 Commission on Human Rights, Res. 2, supra note 19, para. 3(b).

45 UN Doc. E/CN.4/950 (1967), paras. 23-25.

46 Ermacora, supra note 43, at 205.

47 Miller, supra note 1, at 47.

48 See also p. 332 infra.

49 The Violation of Human Rights in South Viet-Nam: Report of the United Nations Fact-Finding Mission to South Viet-Nam, UN Doc. A/5630 (1963), para. 1.

50 Id., paras. 3, 5, and 6. The members were representatives of Afghanistan, Brazil, Ceylon, Costa Rica, Dahomey, Morocco, and Nepal.

51 Id., paras. 12-57; see also the Report of the Secretary-General on methods of fact-finding, UN Doc. A/5694 (1964), at 99-101.

52 UN Doc. A/5630 (1963), supra note 49, Ann. II.

53 Id., paras. 1, 2, 4, and 7-11.

54 Id., paras. 12-20.

55 See the account of the mission with supporting documentation given by Kaufman, supra note 42, at 753-55.

56 Id. at 755.

57 See Note by the Secretary-General, UN Doc. E/CN.4/1021/Rev.l, at 1, 1 (1970).

58 Resolution X adopted by the conference at its meeting, May 12, 1968, UN Doc. A/CONF.32/41 (1968).

59 By Resolution 8 (XXV), March 4, 1969, Note by the Secretary-General, supra note 57, at 2, para. 3.

60 The debate at Tehran had disclosed differing views on what a framework of rules should be designed to achieve and the limitations any framework might impose: (1)

61 Draft rules, supra note 36, at 3, para. 6.

62 Resolution 14 (XXVII), March 24, 1971, in Commission on Human Rights Report on its 27th session, 50 Escor, Supp. (No. 4) 90, UN Doc. E/4949 or E/CN.4/1068 (1971); Report of the Working Group under Res. 14, supra note 25, at 1 (1972). The working group consisted of 5 members of the commission.

63 The submissions may be found in UN Docs. E/CN.4/1071 and Adds. 1-4 (1972); the commentaries of member states are consolidated in UN Doc. E/CN.4/1133 and Adds. 1-3 (1973).

64 Report of the Working Group under resolutions 14 (XXVII) and 15 (XXIX) of the Commission on Human Rights, UN Doc. E/CN.4/1134 (1974), Annex, Text adopted by the Working Group.

65 See Commission on Human Rights, Report on its thirtieth session, 56 UN ESCOR, Supp. (No. 5) 54, UN Doc. E/5464-E/CN.4/1154 (1974).

66 Report of the Social Committee, UN Doc. E/5514, at 24 (1974).

67 Human Rights Comm'n report, supra note 65, at 35. In the original draft prepared by the Secretariat it was stated that “[t]hese model rules shall be applicable upon the decision of the competent organ to ad hoc bodies of the United Nations” and that they could be modified by the ad hoc body if specifically authorized by the organ establishing it. Draft rules, supra note 36, at 4, rules 1, 2.

68 Draft rules, supra note 36, at 9-10, rule 17.

69 Report of the Working Group, supra note 25, at 7, para. 27.

70 Id., para. 28.

71 “Product” in this context is meant to refer to the facts found by the fact finders.

72 Bailey, supra note 7, at 258.

73 Ibid. The General Assembly's Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the principal object of the criticism, appears to have taken it to heart, for in December 1970, and again the following year, it recommended to the General Assembly that the ICRC take over its monitoring and reporting tasks. UN Doc. A/8389/Add.l (1971), paras. 36-38; UN Doc. A/8828 (1972), Letter of Transmittal by the Chairman of the Special Committee and paras. 83-99; see also van Boven, supra note 6, at 113-14. The special committee later expressed regret that the General Assembly had failed to take its advice. UN Doc. A/8828, Letter of Transmittal, this note supra. The ICRC had indicated willingness to assume the duty proposed by the special committee. ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Second Session, 1972: 1 Report of the Work of the Conference, para. 5.46 (1972). After the proposal to transfer its functions to the ICRC was not acted upon, the special committee appears to have tried to tighten up its own procedural rules. This is apparent in the report of October 5, 1971, for example, which for the first time refused to accept at face value uncorroborated accounts by witnesses as to treatment in detention. UN Doc. A/8389 (1971), para. 77.

74 Res. 14 and 15 Working Group Report, supra note 64, at 7, rule 20(b).

75 Id., rule 20(a).

76 Draft rules, supra note 36, at 12, rule 24(c).

77 Res. 14 and 15 Working Group Report, supra note 64, at 7, rule .

78 For a balanced evaluation of the competence and activities of UNESCO in the human rights field generally, see Marks, UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture, and Communications, 13 Tex. Int'L L.J. 35 (1978).

79 This term refers to the comprehensive resolutions integrating UNESCO's eiforts in three basic areas: enhancing peaceful cooperation among member states, liquidating colonialism and racialism, and promoting human rights and fundamental freedoms. This has been the practice of the General Conference since 1970. See 16 UNESCO Gen'L Conf., 1 Resolutions 79 (1970); see generally, D. Pabtan, Documentary Study of the Politicezation of UNESCO 123-32 (1975).

80 17 UNESCO Gen'L Conf., 1 Resolutions 106, UNESCO Doc. 17C/Res.l0.1 (1972).

81 Id., pt. I l l , para. 17.

82 Id., pt. Ill, para. 19.

83 Report by the Director-General on the Situation with Regard to National Education and Cultural Life in the Occupied Arab Territories, UNESCO Doc. 18C/16, at 3, para. 1 (1974). in the occupied Arab territories are not enjoying their inalienable and

84 The mission was led by Mrs. M.-P. Herzog, director of the Human Rights Coordination Unit of UNESCO. Id. at 3, para. 5.

85 Id. at 3, para. 6.

86 Id. at 1. This report was prepared and presented at the conclusion of the term of René Maheu, who retired from the office of Director-General of UNESCO in November 1974. Mr. Maheu was succeeded by Amadou-Mahtar M'Bow of Senegal, who, as of this writing, still occupies the office.

87 Id. at 4, para. 8.

88 Id. at 4, para. 12.

89 Id. at 18, para. 7

90 Id. at 12, para. 44.

91 Id. at 12, para. 49.

92 For the draft resolution, see UNESCO Doc. 18C/PLEN/DR.5 (1974). For the adoption of the resolution, see 18 UNESCO Gen'L Conf., 3 Records 551-66 (1974). The resolution was adopted by 36 votes to 11, with 45 abstentions, on November 23, 1974; id. at 566. The adopted resolution is in id., vol. 1, at 118, UNESCO Doc. 18C/ Res.13.1 (1974).

93 UNESCO Doc. 18C/Res.l3.1, supra note 92, 3d preambular paragraph.

94 Id., para. 1. The draft resolution, supra note 92, did not contain the reference to the Palestine Liberation Organization included in the final version of this paragraph.

95 Report of the Director-General on the Implementation of 18C/Resolution 13 concerning Educational and Cultural Institutions in the Occupied Arab Territories, UNESCO Doc. 99EX/50, at 3, paras. 4, 5 (1976) [in UNESCO Doc. 19C/73, Ann. I (1976)].

96 UNESCO Doc. 99EX/50, supra note 95, at 6, paras. 23, 24, and 27. The Israeli information was received too late to be included in the main report but was attached as a supplement to the Report of the Director-General; id. at 7, para. 34.

97 Id. at 12-14, paras. 71-84.

98 Text of Decision 99EX/9.2 (May 24, 1976), in UNESCO Doc. 20C/113, Ann. II (1978).

99 These negotiations are described in the Report of the Director-General on the Implementation of Resolution 13.1 Adopted by the General Conference at its Eighteenth Session, Concerning the Educational and Cultural Institutions in Occupied Arab Territories, UNESCO Doc. 19C/73 (1976), at 3-5, paras. 14, 16-22. The Israeli authorities cited, inter alia, the disruption attendant upon the beginning of the school year, religious holidays, and the absence of key officials as reasons for their inability to meet the Director-General's suggested schedule.

100 Id. at 6, para. 26.

101 For the draft resolution considered by Program Commission III, see UNESCO Doc. 19C/PRGIII/DR.5 (1976). For discussion of various Western amendments, all of which failed, see 19 UNESCO Gen'L Conf., 2 Proceedings 230 (1976). The vote on the amended draft resolution by Commission III was 73 votes to 6, with 30 abstentions, and in plenary, 61 votes to 5, with 28 abstentions. Id. at 230, 232. The resolution as adopted is reproduced in 19 UNESCO Gen'L Conf., 1 Resolutions 90, UNESCO Doc. 19C/Res.l5.1 (1976).

l02 UNESCO Doc. 19C/Res.l5.1, supra note 101, para. 1; for the terms of reference contained in the resolution, see note 99 supra and accompanying text.

103 UNESCO Doc. 19C/Res.l5.1, supra note 101, 8th preambular paragraph.

l04 19 UNESCO Gen'l Conf., 2 Proceedings 230, para. 94.4 (1976).

105 Id., para. 94.5.

106 Id., para. 96.1.

107 id, Ann. I at 234 (Mr. Kamm).

108 The terms of reference, as set out in Resolution 15.1 of the 19th session, supra note 101, were: (a) to collect on-the-spot information on: (i) the general conditions under which the right to education is ensured and instruction provided in the occupied Arab territories, with particular reference to curriculum content; the nature, origin and content of the textbooks used, the numbers, origin, situation and qualifications of teachers; the number and state of educational premises, together with the school enrollment trend; (ii) conditions of cultural life and, in particular, cultural and artistic means of expression and self-fulfilment ensured for the populations of these territories; freedom in the matter of religious instruction and access to places of worship; freedom of access to external sources of culture and, in particular, to varied sources of information; (iii) generally speaking, all factors permitting an assessment of the extent ? to which the populations of the occupied territories enjoy their natural right to an education and culture which accord with their national identity; (b) to study and submit suggestions on activities that Unesco might undertake, in its field of competence, to assist the populations concerned.

109 See United Nations Press Release, UNESCO/2281 (New York, September 21, 1977) announcing “the final agreement of Israel to receive a UNESCO mission… .“

110 Implementation of 18C/Resolution 13.1 and 19C/Resolution 15.1 Concerning Educational and Cultural Institutions in the Occupied Arab Territories: Report of the Director-General on the Mission He Sent to the Arab Territories Occupied by Israel to Collect on-the-spot Information on the Educational and Cultural Situation, UNESCO Doc. 104EX/52, at 2 (May 31, 1978).

111 No published announcement of the Director-General's appointments could be found by the authors. The list of members published in the Director-General's report, which was not published until more than 6 months after the mission began its work, lists Mrs. Hénin. However, interviews with senior UNESCO officials, members of national missions, and observers from nongovernmental organizations confirm that this was not Mrs. Hénin's original status. Letter (obtained by the authors) from Dragoljub Najman, the UNESCO Deputy Director-General, to the Israeli Permanent Delegate, dated November 15, 1977. The letter makes it quite clear that Mrs. Hénin was not a member of the mission but a staffer. It also stands to reason that two citizens of the same country would not have been named to such a small team, given the long tradition of geographical distribution applicable to such groups. In addition, the representative of Israel to UNESCO has stated publicly that in his letter to the Israeli authorities indicating the membership of the mission, the Director-General had stated that “Mrs. Jacqueline Hénin would have as her sole role to assist the mission in it work.” UNESCO Doc. 104EX/SR.30, at 274, para. 133 (1978) (translation ours).

112 Mr. Henry, a distinguished former international civil servant, served as special consultant to the International Development Research Center in Paris; Mr. Cookey is a former member of the staff of the Commonwealth Secretariat in London and education specialist; Mrs. Hénin is professor of Arab languages and literature at the Institut National des Langues et Civilisations Orientales in Paris; Mr. Ruiz-Giménez is professor of the philosophy of law at the University of Madrid; Mr. de Senarclens is professor of contemporary history at the University of Lausanne; and Mr. Velebit is a former Executive Secretary of the UN Economic Commission for Europe. These biographical descriptions are taken from the Report of the Director-General, infra note 113, at 3, para. 10.

113 Report of the Director-General on Implementation of 18C/Resolution 13.1 and 19C/Resolution 15.1 Concerning Educational and Cultural Institutions in the Occupied Arab Territories, UNESCO Doc. 20C/113, at 4, para. 15 (September 28, 1978).

114 Id. at 4, para. 16.

115 Report of the Director-General, supra note 110, Anns. I-IV.

l16 See New York Times, Nov. 6, 1978, at 14, col. 1.

117 UNESCO Doc. 104EX/SR.29, at 261 (1978).

118 Id. at 261, para. 1.3 (translation ours).

119 Ibid, (translation ours),

120 Id. at 265, para. 11.2-11.3.

121 Id. at 262, para. 5.

l22 [Mr. M'Bow] croit comprendre que M. Torres lui reproche de ne pas avoir diffusé ce qui n'est pas un rapport du chef de mission, mais, corame il fa déja indiqué, une lettre que celui-ci lui a adressée en lui transmettant les rapports des autres membres de la mission. II répète que cette lettre, qui contient essentiellement des reflexions personelles sur favenir des territoires occupes, n'apporte pas de complement d'information de nature à éclairer le débat; c'est pourquoi il n'a pas cru devoir la communiquer au Conseil. Id. at 262, para. 7.2.

123 UNESCO Doc. 104EX/SR.30, at 271, para. 3.1 (1978).

l24 Comme il apparaissait que ceux-ci n'étaient pas tous d'accord sur le contenu de ce rapport, le Directeur général a organisé entre eux une reunion au terme de laquelle ils se sont entendus sur des modifications à apporter au rapport. Id. at 277, para. 15.4.

125 Report of the Director-General, supra note 113.

126 Henin, Report to the Director-General of Unesco on multi-purpose centres for research and creative work, cultural radio and television programmes, publications, festivals and exhibitions and school textbooks and libraries in the Arab territories occupied by Israel since 1967, Report of the Director-General, supra note 110, Ann. IV, at 6.

127 See New York Times, supra note 116. The Times, on the general accusation that Israel was committing cultural aggression against the Arabs under its military rule, quotes the Henry report as stating: “Generally speaking, the policy followed seems to stem from considerations of security rather than from a deliberate desire to undermine the foundations of Arab culture.” Id. at col. 5.

128 Id. at cols. 3-4.

129 Draft Report of Commission V, General Programme Matters, Part II-L (Prov. Agenda Item 62), 20 UNESCO Gen'l Conf. Prov. Rec, UNESCO Doc. 20C/PRG/ V/2, pt. II at 33 (November 23, 1978).

130 See 20 UNESCO Gen'l Conf. Draft Res., UNESCO Doc. 20C/PRG/V/DR.16 (November 13, 1978). The draft was submitted with the endorsement of 19 Arab states.

131 Draft Report of Commission V, supra note 129, Annex—Recommendations, at 36.

I32 Mr. Cookey, for example, established that the schools in the West Bank and Gaza Strip use the Jordanian and Egyptian curricula. Cookey, Education in Arab Territories Occupied by Israel, Report of the Director-General, supra note 110, Ann.West Bank, matriculation certificates issued by the Supreme Examining Board are recognized by the Government of Jordan and Arab universities. Id. at 5. He also points out that there were no Arab universities in the West Bank prior to 1967 but that there are now 4 institutions of higher learning. Id. at 5-6. See also Ruiz- Gimenez, Higher education in Arab territories occupied by Israel, Report of the Director-General, supra note 110, Ann. III. The Ruiz-Giménez report in this connection discusses the opening of Palestine's first “College for the Study of Islam” at Hebron under Israeli occupation. Id. at 3. The Arab authorities at Hebron appear to have told the mission that “imported books are revised by the occupation authorities, but they only suppress tendentious or anti-Israeli passages.” Id. at 4. Ruiz-Giménez found that the Hebron Centre “respects and encourages the religious, Islamic, character inherent to the ‘cultural identity’ of the Arab population of these territories. From this point of view, praise is certainly due to the economic backing that the Israeli Governme.

133 Draft Report of Commission V, supra note 129, Annex—Recommendations, at 37.

134 The vote in Commission V was 64 votes to 4 (Australia, Canada, Israel, and the United States), with 26 abstentions. Id. at 35.

135 Declaration concerning the Aims and Purposes of the International Labour Organisation, adopted at the 26th session of the ILO, Philadelphia, 10 May 1944, and incorporated by Article 1 of the ILO Constitution as an annex thereto. See Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference 23 (Geneva 1977). Part II of the declaration states in part: the Conference affirms that— (a) all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; (b) the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy; (c) all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective; ( d ) it is a responsibility of the International Labour Organisation to examine and consider all international economic and financial policies and measures in the light of this fundamental objective; (e) in discharging the tasks entrusted to it the International Labour Organisation, having considered all relevant economic and financial factors, may include in its decisions and recommendations any provisions which it considers appropriate. Id. at 24. For discussion, see C. W. Jenks, Human Rights and International Labour Standards 3 (1960); E. B. Haas, Beyond the Nation-State 336 (1964); Gormley, The Emerging Protection of Human Rights by the International Labour Organization, 30 Albany L. Rev. 13 (1966); Wolf, ILO Experience in the Implementation of Human Rights, 10 J. Int'L L. Econ. 599 (1975) [hereinafter cited as ILO Experience].

136 This term was originated by C. Wilfred Jenks to embrace the sum total of international labor legislation, including the Constitution, conventions, and recommendations of the ILO; for discussion, see Gormley, supra note 135, at 26-29. There are now 149 conventions and 157 recommendations of the ILO; see generally ILO, Conventions and Recommendations 1919-1966 (Geneva 1966); ILO, The Impact of International Labour Conventions and Recommendations (1976).

137 See Rossilion, ILO Examination of Human Rights Situations, International Commission of Jurists, the Review 40 (No. 12, June 1974). Rossilion notes that member states traditionally attribute “a spirit of objectivity” to the work of the ILO, especially in fact-finding. Id. at 41. See generally C. W. Jenks, Social Justice in the Law of Nations: the Ilo Impact After Fifty Years (1970); and Wolf, At the Apex of the Value Hierarchy—An International Organisation's Contribution, 24 N.Y.L.S.L. Rev. 179 (1978) [hereinafter cited as Value Hierarchy].

138 The ILO is unique in its “tripartite” configuration. The Governing Body of the ILO has 50% government membership balanced against employer and worker representation, each accounting for 25%. Each member state is entitled to 4 delegates to the International Labor Conference in accordance with this basic distributional formula. See C. W. Jenks, the International Protection of Trade Union Freedom 68-87 (1957).

139 Wolf, Value Hierarchy, supra note 137, at 187.

140 Ibid.

141 Wolf, ILO Experience, supra note 135, at 608.

142 See ILC, I Record of Proceedings, 8th Session 238-57 (1926).

143 Wolf, Value Hierarchy, supra note 137, at 188; Wolf, ILO Experience, supra note 135, at 608.

144 Wolf, Value Hierarchy, supra note 137, at 188. The ILO Legal Adviser has stated that in a recent 12-year period over 920 legal discrepancies were thus rectified.Wolf, ILO Experience, supra note 135, at 609-10.

145 Wolf, Value Hierarchy, supra note 137, at 188.

146 Czechoslovak Labour Code §46(l)(e) (amended 1969). See ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations 175 (Report III, Pt. A, 56th Sess. 1971).

147 Wolf, Value Hierarchy, supra note 137, at 189.

148 There have been only 11 cases altogether. For more details on the Czech inquiry, see Meron, Violations of ILO Conventions by the USSR and Czechoslovakia, 74 AJIL 206 (1980).

149 Convention concerning the Organization of the Employment Service (1948), No. 88, 70 UNTS 85.

150 ILO Const., supra note 135, Art. 26, paras. 2 and 3.

151 Id., Art. 27.

152 Wolf, ILO Experience, supra note 135, at 616.

153 ILO Const., supra note 135, Art. 29, para. 1.

l54 Id., Art. 29, para. 2; Art. 32.

155 Id., Art. 33.

156 A complaint concerning application of the Hours of Work (Industry) Convention, 1919 (No. 1), to Indian railways was submitted by the Indian workers’ delegate to the International Labor Conference in 1934; the Governing Body, however, did not consider it necessary to appoint a commission of inquiry. 20 ILO Off. Bull., No. 1, at 15 (1935). See C. W. Jenks, Social Justice, supra note 137, at 48

157 The reports of the commissions may be found, respectively, in 45 ILO Off. Bull., No. 2, Supp. II (1962); 46 ILO Off . Bull., No. 2, Supp. II (1963); 54 ILO Off. Bull., No. 2, Spec. Supp. (1971); ILO, Report Of The Commission Appointed Under Article 26 Of The Constitution to Examine the Observance by Chile of the Hours of Work (Industry) Convention, 1919 (No. 1), and the Discrimination (Employment and Occupation) Convention, 1958 (No. I l l ) (prov. ed. 1975).

158 Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Ghana concerning the Observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957 (No. 105), 45 ILO Off . Bull., No. 2, Supp. II, at 5-7 (1962). The Portuguese colony of Guinea, which was not visited by the commission, was also mentioned in the complaint. Id. at 1.

159 Id. at 5, para. 9. The instructions given the commission included the following: The Commission shall begin its work by examining the particulars furnished by the Government of Ghana and the observations of the Government of Portugal with a view to determining on what matters it needs fuller information. The Commission will then, through the Director-General, consult the Governments of Ghana and Portugal, but without being bound by the views of either of them, concerning the arrangements necessary to ensure that it has at its disposal thorough and objective information concerning the questions at issue; in the event of any difficulty being encountered, the Commission will so report to the GoverningBody. Id. at 6, para. 9.

160 Id. at 6, para. 11.

161 The oath was adapted to the circumstances of the case as follows: I solemnly declare that I will honourably, faithfully, impartially and conscientiously perform my duties and exercise my powers as a member of the Commission appointed by the Governing Body of the International Labour Office in pursuance of article 26 of the Constitution of the International Labour Organisation to examine the complaint filed by the Government of Ghana concerning the observance by Portugal of the Abolition of Forced Labour Convention, 1957. Id. at 7, para. 12.

162 Id. at 6, para. 12.

163 Id. at 10, paras. 17-19.

164 M. at 11, para. 23.

165 Id. at 12, para. 26.

166 Id. at 13-15.

167 Id. at 17-18, para. 46. The 14-paragraph decision establishing these procedures is fully reproduced in the report.

168 Id. at 20, para. 51; id. at 18, para. 46(9).

169 Id. at 19, para. 48.

170 The itinerary was based on “a detailed study of the regions, activities and undertakings in respect of which allegations had been made and the information at the Commission's disposal on the economic and social situation in Angola and Mozambique.” Id. at 22, para. 57.

171 The report indicates that the Portuguese Government had conferred complete freedom of movement on the commission. However, the itinerary of visits was conveyed to the authorities “shortly before” they were scheduled to take place, “for confirmation that they were practically possible.” Id. at 22-23, para. 58.

172 Id. at 23, para. 59. The full text of the decision is reproduced in the report.

l73 Id. at 24, paras. 61, 62. For a specific account of the visits, see §§I—III of ch. 5 of the report, id. at 22-29.

174 Id. at 29, para. 80.

175 Ibid. “The Commission or one of its members was able in many instances to talk to workers without any representative of management or of the authorities being present.” Id. at 29, para. 81.

176 Id. at 32, para. 88.

177 Id. at 33, para. 91; see generally ch. 10 of the report, id: at 71 ff. and 234-36.

178 Id. at 234. For the findings and recommendations of the commission, see ch. 14 of the report, id. at 227 ff.

179 Id. at 247, para. 779.

l80 Gormley, supra note 135, at 37; E. B. HAAS, supra note 135, at 367.

181 See Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Portugal concerning the Observance by the Government of Liberia of the Forced Labour Convention, 1930 (No. 29), 46 ILO Off. Bull., No. 2, Supp. II, pts. I and II (1963).

l82 Id. at 179.

183 Id. at 169-76, 179-81.

l84 Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaints concerning the Observance by Greece of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Made by a Number of Delegates to the 52nd Session of the International Labour Conference, 54 ILO Off. Bull., No. 2, Special Supp. (1971).

185 Id., chs. 1 and 3.

186 Id., ch. 5.

187 Id. at 20, para.

188 The Governing Body appointed to the commission those persons who had been appointed in advance as members of the panel of the Fact-Finding and Conciliation Commission. Report of the Commission for Chile, supra note 157, at 3.

189 No. 87, 68 UNTS 17, and No. 98, 96 UNTS 257.

190 “ From its inception, the ILO has recognised that freedom of expression and of association are the conditions sine qua non of the Organisation's existence.” Wolf, Value Hierarchy, supra note 137, at 193-94; see also Declaration of Philadelphia, supra note 135.

191 E. B. Haas, Human Rights and International Action: the Case of Freedom of Association 27-29 (1970).

192 See ILO, Sixth Report of the ILO to the United Nations 171 (Geneva 1952).

193 Id. at 172, para. 12. The initial composition of the FFCC was: Carl V. Bamsnaes (Denmark), governor of the National Bank of Denmark; Mahmoud Hassan Pasha (Egypt), former ambassador to the United States; J. N. Majumdar (India), member of the All-India Industrial Tribunal; Francois de Menthon (France), member of the French National Assembly; Frank J. Murray (United States), associate justice of the Massachusetts Superior Court; Arsenio Roldan (Philippines), presiding judge, Court of Industrial Relations; Oscar Schnake (Chile), former minister of development; Arthur Tyndall (New Zealand), judge, New Zealand Court of Arbitration. Id. at 172, para. 11.

194 Id. at 171, paras. 7, 8.

195 Id. at 173, para. 13.

196 Id. at 173, para. 14.

197 ILO, The Impact of International Labour Conventions and Recommendations 70 (1976).

198 Id. at 172, para. 13.

199 Wolf, Value Hierarchy, supra note 137, at 195.

200 If the Governing Body is of the opinion that a complaint should be investigated it must first seek the consent of the Government concerned. If such consent is not forthcoming, the Governing Body has to give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association involved in the case, including measures to give full publicity to charges made… . Sixth Report of the ILO to the United Nations, supra note 192, at 173, para. 15

201 Gormley, supra note 135, at 41.

202 Wolf, Value Hierarchy, supra note 137, at 196.

203 “For nonratifying States, the machinery is based on their membership of [sic] the International Labor Organization and on the fact that the ILO Constitution has affirmed the principle of freedom of association so that the Organization can promote the realization of this principle through

204 See, respectively, the Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan, 49 ILO Off. Bull., NOS. 1-4 (1966) [hereinafter cited as Japan Report]; Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning the Trade Union Situation in Greece, 49 ILO Off. Bull., No. 3, Special Supp. (1966) [hereinafter cited as Greece Report]; ILO, the Trade Union Situation in Chile: Report of the Fact-Finding and Conciliation Commission on Freedom of Association (prov. ed. 1975) [hereinafter cited as Chile Report]; Report of the Fact- Finding and Conciliation Commission on Freedom of Association Concerning Lesotho, ILO Governing Body, 197th Session, ILO Governing Board Doc. 197/3/5 (1975) [hereinafter cited as Lesotho Report].

205 Wolf, ILO Experience, supra note 135, at 622.

206 See Japan Report at 10-13, paras. 57-66; Greece Report at 6 and 14, paras. 23, 76, and 77; Lesotho Report at 10-11, paras. 47-48; Chile Report at 15-16, paras. 76-77.

207 Ibid.

208 Japan Report at 13-14, paras. 68-71; Greece Report at 7-8, paras. 28-34; Lesotho Report at 7-9, paras. 32-45; Chile Report at 9-14 and 16-17, paras. 42-75, 81-82.

209 Japan Report at 14, para. 73; Greece Report at 8-9, and 15-16, paras. 36-41, 87; Lesotho Report at 9 and 11, paras. 46, 50; Chile Report at 16 and 17, paras. 79, 83.

210 Japan Report at 14, para. 73; Greece Report at 16, para. 88; Chile Report at 17, para. 84.

211 Ibid. See also Lesotho Report at 11, para. 53.

212 Japan Report at 14, paras. 75-77; Greece Report at 16, paras. 90-92; Chile Report at 17, paras. 87-89. These preliminary hearings were not instituted by the Lesotho panel.

213 Japan Report at 14, para. 75; Greece Report at 17, para. 94 and rules 2 and 8 of note 1; Chile Report at 17-18, paras. 86, 90.

214 This problem arose only in the Chile case, discussed in the text at p. 343. For a passing reference to fear of retaliation in the Lesotho investigation, where it appears to have been treated as a less serious problem, see Lesotho Report at 20-21, paras. 108-09

215 Japan Report at 23, paras. 108-10; Chile Report at 6, 19, and 26, paras. 37, 93, 138. No on-site visit was made by the panel in Greece. Greece Report at 18, para. 97. In the Lesotho case, only the panel chairman conducted an on-site inspection, although the same rules applied. Lesotho Report at 13 and 14, paras. 57-58, 70.

216 Lesotho Report at 20, para. 106; Chile Report at 28 and 29, paras. 150, 157. One exception was made by the Lesotho panel in the case of Shakane Mokhele, the former opposition and labor leader interviewed in the presence of prison officials

217 Japan Report at 24-25, paras. 114-21; Chile Report at 26, para. 137. The procedure was not applicable to the panels on Greece (no on-site visit) or Lesotho (visited by chairman only).

218 Lesotho Report at 21, para. 109; Chile Report at 29, para. 154. In several instances, however, the panel's efforts to interview incarcerated persons were frustrated by their transfer to other locations. Id. at 29, paras. 155-56.

219 Japan Report at 25-26, para. 127; Lesotho Report at 21, para. I l l ; Chile Report at 30-32 and 103-07, paras. 159, 445-65.

220 Chile Report at 102-03, paras. 436-44.

221 See note 204 supra.

222 Chile Report at 7, para. 41.

223 at 15-16, paras. 76-77.

224 See note 216 supra.

225 Chile Report at 29, para. 158.

226 at 102, paras. 436-40.

227 Id. at 103, paras. 441-44. For example, in the case of a prisoner allegedly transferred to a military prison on Quinquina Island, the Government replied that he had been transferred to “Tres Alamos” for climatic reasons. Id. at para. 441.

228 Id. at 25, para. 125. See ako id. at 24, paras. 123-24.

229 This is a group designated by the Governing Body, consisting of 9 of its own officers. See Wolf, ILO Experience, supra note 135, at 620-21.

230 Id. at 620.

231 Id. at 621.

232 See, e.g., Report of the Study Group to Examine the Labour and Trade Union Situa tion in Spain, 52 ILO Off. Bull., No. 4, 2d Special Supp. (1969).