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The United Nations’ Double Standard on Human Rights Complaints

Published online by Cambridge University Press:  28 March 2017

John Carey
John Carey*
Affiliation:
Of the New York Bar
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American Journal of International Law , Volume 60 , Issue 4 , October 1966 , pp. 792 - 803
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Copyright © American Society of International Law 1966

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References

1 U.N. General Assembly, 3rd Sess., Official Records, Pt. I, 3rd Comm. p. 699 (TJ.N. Doe. A/C.3/SR. 158) (1948). The French representative was credited by the Belgian with having “clearly stated the paradox.“

2 General Assembly action respecting apartheid and the human rights aspects of colonialism have been noted in Gardner, In Pursuit of World Order 243 (1965), and Buergenthal, “The United Nations and the Development of Rules Relating to Human Rights,” 1965 Proceedings of the American Society of International Law 132.

3 U.N. Doc. E/CN.4/903-E/CN.4/Sub.2/263, p. 61 (the U. S. member is referred to).

4 The procedures are now embodied in ECOSOC Res. 728 F (XXVIII) of 1959. For an example of the non-confidential summary, see U.N. Doc. E/CN.4/CR.35. The Commission on the Status of Women also receives a “Non-Confidential List o£ Communications” (Doc. E/CN.6/CR.18), as does the Sub-Commission on Prevention of Discrimination and Protection of Minorities (U.N. Doc. E/CN.4/Sub.2/CR.10). The General Assembly and Security Council publish their own lists of communications received. See respectively U.N. Docs. A/INF/112 and Add. 1-4 and S/NC/179.

5 Bilder, , ‘ ‘ The International Promotion of Human Rights: a Current Assessment,'’ 58 A.J.I.L. 728, 731 (1964).Google Scholar

6 U.N. Doc. E/CN.4/165, p. 7. At the 18th (January, 1966) session of the Sub- Commission on Prevention of Discrimination and Protection of Minorities, to which the Secretary General presented confidential and non-confidential lists of communications, “ … various members expressed deep uneasiness about the existing practice in relation to those communications. These members considered that they were placed in an impossible position when they were made aware of the existence of complaints in fields within their expert province but were denied a sight of the text of the complaints or an opportunity to discuss them.” Op. cit. note 3 above.

7 H . Lauterpacht, International Law and Human Rights 244 (1950).

8 “Human Rights in the United Nations,” 58 A.J.I.L. 603, 640 (1964).

9 Breugel, “The Right to Petition an International Authority,” 2 Int. and Comp. Law Q. 542, 547 (1953). The agenda of the 22nd (March-April, 1966) session of the Commission on Human Eights included (U.N. Doc. B/CN.4/894, p. 13) the matter of a resolution adopted on June 18, 1965, by the Special Committee on Colonialism drawing the Commission's attention “ … to the evidence submitted by the petitioners respecting the violations of human rights committed in the Territories under Portuguese administration, in South West Africa, and in Southern Rhodesia.” U.N. Doc. A/AC.109/128/Bev. 1, p. 3.

10 54 Dept. of State Bulletin 178 (Jan. 3, 1966). Similar proposals had been made by Uruguay in 1951 (U.N. Doc. A/C.3/564), and 1955 (U.N. Doc. A/2929 at 84-85), and in December, 1963, by Mr. Jacob Blaustein in a Dag Hammarskjold Memorial Lecture at Columbia University.

11 U.N. Doc. A/5963, p. 6. Costa Rica had put a similar item on the agenda of the 21st (March-April, 1965) session of the Commission on Human Rights, at which time the matter was not reached. A U.N. High Commissioner was recommended by several participants at the U.N. human rights seminar on the multi-national society held in June, 1965, in Yugoslavia (U.N. Press Release Soc/HR/130, p. 2) and by the U.K. at the ECOSOC meeting in July (U.N. Press Release ECOSOC/2108, p. 2). The High Commissioner proposal was referred by General Assembly Res. 2062 (XX) for consideration by the Commission on Human Rights at its 22nd (March-April, 1966) session.

12 Gardner, op. cit. note 2 above, p. 261. Representatives of Sweden, Argentina, and the International Confederation of Free Trade Unions all indicated in the debate on March 25, 1966, in the Commission on Human Eights that they did not believe the High Commissioner proposal then before the Commission would authorize him to receive complaints (U.N. Press Release SOC/HE/199). The U.S.S.E. on March 28, 1966, denounced the proposal as calling for a “fantastic institute” and a “supreme judge” above governments (U.N. Press Release SOC/HE/202). The Commission adopted a resolution establishing a working group “ t o study all relevant questions” and requesting the Secretary General “ to prepare an analytic and technical study” on the proposal (U.N. Press Release SOC/HE/207).

13 U.N. General Assembly, 15th Sess., Official Records, Supp. No. 4, at 6 (Doc. A/ 4404) (1960).

14 Ibid., Annexes, Agenda Items Nos. 13 and 47, at 32 (Doc. A/4737), 45-46 (Doc. A/4738) (1961).

15 U.N. General Assembly, 16th Sess., Official Records, 4th Comm., pp. 322-326 (Doc. A/C.4/SR.1208) (1961).

16 U.N. Doc. A/C.4/SB. 1481, p. 10. However, South Africa stated two years later respecting South West Africa that it did not recognize the right of the Committee to hear petitioners except in the case of Trust Territories. U.N. Doc. A/C.4/SR.1568, p. 12.

17 U.N. Doc. A/C.4/SR.1479, p. 2. See also U.S.S.E., Ibid., p. 4; Ghana, ibid., p. 9; Yugoslavia, TJ.N. Doc. A/C.4/SE.1481, p. 3.

18 U.N. Doc. A/C.4/SR.1480, p. 13. The Fourth Committee was praised by its Chairman in September, 1965, for its having “ … been able to bring about a gradual and almost imperceptible readjustment of certain provisions of the Charter so that it might remain, as far as possible, a reflection of the progress and the major currents of our day. A significant illustration of this continuous process of empirical adaptation of the Charter to a rapidly and constantly changing world lies in the way in which it was possible gradually to change the centre of gravity of United Nations anticolonial action from the Trusteeship Council to the Committee of Twenty-Four known as the Decolonization Committee.” U.N. Doc. A/C.4/640, pars. 12-13.

19 U.N. General Assembly, 17th Sess., Official Records, Annexes, Addendum to Agenda Item No. 25 (Doc. A/5238, at 18-19) (1962).

20 Res. 1804 (XVII). The Committee of 24 was thereby given functions previously assigned to the Special Committee for South “West Africa, formed in 1961 to take over from the Committee on South West Africa, which in 1953 had replaced an ad hoc petition-examining Committee dating back to 1950, the year of the International Court of Justice advisory opinion affirming South Africa's duty to report annually on South West Africa and transmit petitions to the U.N., [1950] I.C.J. Rep. 128. The Court gave two later advisory opinions on the procedures established by the U.N., one on voting, [1955] I.C.J. Rep. 67, and the other upholding the Assembly's authorization to the Committee on South West Africa to grant hearings to petitioners, [1956] I.C.J. Rep. 23. In the latest I.C.J, action, Ethiopia and Liberia asked the Court to adjudge that South Africa has illegally failed to transmit petitions to the General Assembly. U.N. Press Release I.C.J./243, June 1, 1965, p. 3. See [1966] I.C.J. Rep. 6.

21 Res. 1900 ( XVIII ) ; Report of Special Committee, Doc. A/5446 and Add. 1-4.

22 Res. 1958 (XVIII). Trance, South Africa, Spain,, the United Kingdom, Belgium and the United States abstained.

23 Res. 1970 (XVIII). Two years later the General Assembly “Notes with appreciation the work accomplished by the Special Committee … , Requests the Special Committee to continue to perform its task… . “ Res. 2105 (XX).

24 U.N. Doc. A/AC.109/PET.374.

25 Shortly before the declaration by the Ian Smith regime, Mauritania told the Fourth Committee “ … that Southern Rhodesia was still under colonial rule—no longer that of United Kingdom officials perhaps, but of settlers installed by the United Kingdom.” U.N. Doc. A/C.4/SB.1544, p. 12.

26 Mr. A.B.Ngcobo of the Pan-Africanist Congress of South Africa told the Colonialism Committee on June 8, 1965, at Dar es Salaam, Tanzania, that South Africa is “ruled by a foreign minority… . He therefore could not agree with the Special Committee that it was not competent to hear the nationalist leaders of South Africa.” U.N. Doc. A/AC.109/SE.358, pp. 14-15. On the other hand, the National Unity Democratic Organization has stated that South African Prime Minister “Verwoerd is not Salazaar, who can retire to Portugal, or Smith [of Southern Rhodesia] who can retreat to England.” U.N. Doc A/AC.109/PET.371/Add.4, p. 4. The Government of The Netherlands, from which Verwoerd came like the ancestors of many of his white fellow-countrymen, in June, 1965, pledged Dfl. 100,000 “for the relief and assistance to persons persecuted for their opposition to the policies of apartheid.” U.N. Doe. A/AC.115/L.134. South Africa lodged an official protest at this (U.N. Doc. A/AC. 115/SE.64, p. 7). A Netherlands representative in December, 1965, told the U.N. Special Political Committee that “ i t was distressing for his country to realize that apartheid was practised by a people who traced their origin in part to the Netherlands, where that line of thinking was rejected as being contrary to the innermost convictions of its people and more important than any ties of kinship.” U.N. Doc. A/SPC/SE. 480, p. 7. Costa Rica has stated the view that, “although the fight against apartheid had some political aspects, it primarily reflected a desire to ensure respect for fundamental human rights.” U.N. Doc. E/CN.4/AC.19/SE.2, p. 3.

27 See, for example, U.N. Docs. A/5825/Add.l-S/6073/Add.l.

28 U.N. Doc. A/AC.115/SR.55, p. 7. The Apartheid Committee Chairman later urged that foreign activities “ … which encouraged the apartheid regime should be given the greatest publicity and mercilessly denounced.” U.N. Doc. A/AC.115/SR.62, p. 7. General Assembly Res. 2054 (XX), which increased the Committee's membership by six, “Requests the Secretary-General, in consultation with the Special Committee, to take’ appropriate measures for the widest possible dissemination of information on the policies of apartheid of the Government of South Africa and on United Nations efforts to deal with the situation… . “ In March, 1966, the Special Committee published a ten-page “Review of Recent Political Trials in South Africa” (U.N. Doc. A/AC. 115/L.164), updating its earlier report of August, 1965.

29 When Iraq objected in January, 1966, on the floor of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Secretariat's descriptions in a published document (U.N. Doc. B/CN.4/Sub.2/259) of allegations made in 1963 of genocide by Iraq against the Kurdish People, the descriptions were deleted. U.N. Doc. E/CN.4/Sub.2/259/Rev. 1.I.L.O.'s March, 1966, request (U.N. Doc. E/CN.4/909 and Add.l) that the Commission on Human Rights investigate alleged mass executions in Burundi was withdrawn by I.L.O. after Burundi agreed to co-operate in an I.L.O. investigation. U.N. Press Release ILO/1482, March 28, 1966.

30 U.N. Doc. A/C.3/SR.1374, p. 13. The Convention was opened for signature on March 7, 1966. Nine states signed that day, including the U.S.S.E., Byelorussia, Ukraine, and Poland.

31 Adopted by Assembly Res. 2106 (XX); reprinted in 60 A.J.I.L. 650 (1966).

32 U.N. Doc. A/C.3/SR.1374, p. 9.

33 Ibid. 14.

34 54 Dept. of State Bulletin 215 (1966).

35 Mexico voted in the plenary session for adoption, after first abstaining (U.N. Doc. A/P.V. 1406, pp. 31-40), because of the reservations provision, which was added by a vote of 82-4-21 to the Third Committee's draft, from which a different reservations clause had been deleted by a 25-19-62 vote.

36 Much discussion was devoted in the Third Committee to the relative meanings of “complaints,” “petitions,” and “communications.” U.N. Docs. A/C.3/SR.1353, pp. 5-11; SR. 1362, p. 5. Another article (Art. 22) provides for compulsory jurisdiction of the International Court of Justice to settle disputes over the interpretation or application of the Convention.

37 No mention was made of the Special Committee on South African Apartheid, which could also supply many petitions relevant to racial discrimination.

38 U.N. Docs. A/C.3/SR.1373, p. 19; SR.1363, p. 11.

39 U.N. Doc. A/C.3/SR.1368, p. 11

40 U.N. Does. A/C.3/SE.1364, p. 7; SR.1368, p. 19.

41 An additional legal problem raised by New Zealand, The Netherlands, and the U. S. concerned what Ambassador Goldberg described as “the attempt made in this article [15] to extend the provisions of this convention to territories of States not parties to [the Convention].” U.N. Docs. A/C.3/SB.1364, p. 9; SR.1368, p. 12; USUN Press Release 4752.

42 Presumably South Africa would not consent under Art. 14 to complaints against itself in view of its stand that U.N. Charter Article 2(7) precludes U.N. consideration of apartheid. See U.N. Doc. A/SPC/SR.480, par. 17.

43 U.N. Doc. A/C.3/SR.1364, p. 10.

44 U.N. Doc. A/C.3/SR.1355, p. 11. The Dutch urged not only that “ … factfinding was one of the most effective means of dealing with violations of human rights” (U.N. Doc. A/C.3/SB.1344, p. 16), but also that fact-finding should be employed as a means of peaceful settlement of disputes (U.N. Doc. A/C.6/L.580). In the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities the view had been expressed with respect to genocide that “ … the urgent need was not so much for an international criminal organ as for an international body which would endeavor to prevent the crime … , such a body … to investigate and to assess allegations of genocide… . “ U.N. Doc. E/CN.4/Sub.2/259, p. 3. The Sub- Commission in Res. 8 (XVII) and 7 (XVIII) has asked the Commission “ t o give consideration to further measures that are required to reinforce the prevention and punishment of the crime of genocide and to give wider effect to the Convention.“

45 One Sub-Commission member (Pierre Juvigny, France) stated in January, 1966, that he “ … felt that the Sub-Commission could perform a function similar to that of the ILO Committee of Experts, by evaluating the progress made in implementing the human rights proclaimed in the United Nations declarations and conventions.” U.N. Doc. E/CN.4/903-E/CN.4/Sub.2/263, p. 56. I.L.O. experience in handling nongovernmental complaints was described in detail to the Third Committee during its consideration of measures of implementation for the Convention on Racial Discrimination. U.N. Doc. A/C.3/SE.1349, pp. 6-10. Pursuant to ECOSOC Res. 1075 (XXXIX), reports on “Organizational and Procedural Arrangements for the Implementation of Conventions and Recommendations in the Field of Human Eights” were completed at the end of 1965 by UNESCO (U.N. Doe. E/4133) ; I.L.O. (U.N. Doc. E/4144); and the U.N. Secretary General (U.N. Doc. E/4143).

46 Dr. John P. Humphrey, Director of the U.N. Human Rights Division, has stated that “had there been in existence at that time an Office of the High Commission for Human Rights, it is conceivable that the Government of South Viet Nam might have preferred to have the investigation carried on by such an international personality acting under the authority of the General Assembly rather than a mission made up of ambassadors representing particular states.” Humphrey, “The United Nations and Human Rights,” 11 Howard L. J. 373, 378 (1965). Although the High Commissioner proposal of Costa Rica was deferred at the Assembly's 20th Session, pending comment from the Human Rights Commission, it evidently influenced the singular action of Cyprus in declaring its willingness to accept for a time “ … by way of international guarantee … the presence in Cyprus of a United Nations Commissioner” to protect the Turkish minority community (U.N. Doc. A/6039); see Cyprus’ explanation, U.N. Doc. A/C.1/P.V.1141, p. 71.

47 See U.N. Docs. E/4056 and Add. 1-3; E/4168 and Add. 1-4.

48 Under ECOSOC Res. 1074 (XXXIX) periodic reports are being received from governments, specialized agencies, and non-governmental organizations on a three-year cycle. Reports on civil and political rights began arriving in late 1965, with reports on economic, social and cultural rights scheduled for arrival a year later and those on freedom of information a year after that. There is substantial agreement that governmental reports alone are not an adequate source of information on local conditions, but must be supplemented with information from private sources. See U.N. Doc. E/CN.4/AC.20/L.5, p. 10. The U.S.S.E. has agreed with this view where non-selfgoverning territories are concerned. U.N. Doc. A/6000/Add.7, p. 190.

49 Numerous objections have been made to the rudimentary fact-finding methods employed by the Assembly and its Committees. For example, the U.K. complained at the June 8, 1965, meeting of the Colonialism Committee that “ … the Committee was not competent in either legal or practical terms to judge complaints … or to ascertain the facts.” The Soviet Union retorted that the U.K. “ … had not put forward a single concrete fact to refute the allegations of the petitioners. That being so, the Committee had no choice but to accept the veracity of the petitioners’ statements.” U.N. Doc. A/AC.109/SB.358, pp. 9, 11. In March, 1966, the Colonialism Committee, upon receipt of three telegrams (U.N. Docs. A/AC.109/PET. 443-445), adopted over British objections a resolution (U.N. Doe. A/AC.109/153) deploring the U.K.'s “effecting mass arrests” in Aden. See also objections of South Africa concerning “groundless charges” in an Assembly resolution which it claimed had been refuted before the International Court of Justice in the South West Africa proceedings (U.N. Doc. A/6219); similar objections in U.N. Doc. E/4167.

50 Assembly Res. 2081 (XX). At ECOSOC's urgent request, the Commission on Human Eights at its 22nd (March-April, 1966) session considered “ … the question of the violation of human rights and fundamental freedoms including policies of racial discrimination and segregation and of apartheid in all countries with particular reference to colonial and other dependent countries… . “ The Commission was also asked for “ … its recommendations on measures to halt those violations.” The United States introduced in the Commission an amendment to a U.S.S.E. draft resolution “Recognizing that the procedures in the United Nations for obtaining and considering information relating to violations of human rights in dependent Territories are highly developed, and that such procedures in connexion with violations of human rights in other areas are still embryonic.” U.N. Doc. E/CN.4/L.825.