The Drafting of the Human Rights Provisions of the UN Charter

Netherlands International Law Review

Volumn 44, Issue 1, 1997, Pages 1-31

  Jhabvala, Farrokh ^a  

^a FLORIDA INTERNATIONAL UNIVERSITY   (United States)

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EID: 85023095465     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00004307     Document Type: Article

References (112)

1. See, e.g. Amnesty International Report (1995); Amnesty International, Getting Away with Murder (1993).
2. R. Russell and J. Muther, A History of the United Nations Charter (1958) pp. 423–424.
3. R. Russell and J. Muther, A History of the United Nations Charter (1958) p. 424.
4. A History of the United Nations Charter 3 529-530 Doc. G/ 14(d)(1), 6 UNCIO A proposed preamble was also submitted by Colombia, Doc. G/14(s), idem, at pp. 528–529, but was not discussed
5. Second Meeting of Committee 1/1,6 UNCIO, A History of the United Nations Charter n. 3, pp. 276–277. Unless otherwise noted, all references to committee discussions at San Francisco are to the Summary Reports of meetings as included in the UNCIO volumes.
6. A History of the United Nations Charter, at p. 277
7. Fourth Meeting of Committee 1/1, A History of the United Nations Charter, at p. 287
8. Report of the Rapporteur, Subcommittee I/l/A, Section 3, to Committee 1/1, Doc. 785, 1/1/28, 6 UNCIO, Fourth Meeting of Committee n. 3, p. 358.
9. Idem. These aspirations were repeated in the Report of the Rapporteur of Committee 1 to Commission I, Doc. 1944, 1 / 1 / 34(1), idem, at pp. 449–450.
10. This opening phrase was suggested by the US delegate, Virginia Gildersleeve; see Russell and Muther, These aspirations were repeated in the Report of the Rapporteur of Committee n. 4, at pp. 912–915. The words were suggested to the drafting subcommittee ‘by the leading words in the Constitution of the United States of America Report of the Rapporteur of Committee 1 to Commission I, n.16 at p. 450.
11. Draft Preamble (as approved by Committee I/l/A), Doc. WD 621/l/A/18,6 UNCIO, n. 3, p. 694. The reference to establishing conditions under which justice and respect for the obligations of international law and treaties can be maintained was moved to an earlier part of the draft preamble. 19. Reported by the South African delegate to the Thirteenth Meeting of Committee 1/1, at p. 365.
12. See, infray n. 46 and associated text.
13. UNCIO, Reported by the South African delegate to the Thirteenth Meeting of Committee n. 3, pp. 366–368.
14. UNCIO, Reported by the South African delegate to the Thirteenth Meeting of Committee n. 3, pp. 366.
15. UNCIO, Reported by the South African delegate to the Thirteenth Meeting of Committee n. 3, pp. 359.
16. UNCIO, Reported by the South African delegate to the Thirteenth Meeting of Committee n. 3, p. 366.
17. Verbatim Minutes of First Meeting of Commission I, at pp. 20–21.
18. Doc. 1192, CO/185, vol. 15, pp. 260–261. The words ‘by the employment of were changed to ‘to employ’, and the article ‘the’ was introduced in the same paragraph before the word ‘economic’.
19. UNCIO, economic n. 3, p. 2; vol. 6, p. 534. 30. According to Russell and Muther, most delegations considered such amendments as expanding the purposes of the proposed organization, whereas the US delegation ‘thought of them primarily as clarifications’. n. 4, at p. 778.
20. Doc. G/14(l) (Australia); Doc. G/7(q) and (q)(l) (Egypt); Doc. G/14(h) (India); and Doc. G/7(c)(l) (Mexico); respectively at 6 UNCIO, thought of them primarily as clarifications n. 3, pp. 535, 539, 541–542 and 544.
21. Doc. G / 14(k), at p. 551.
22. Joint proposal of Brazil, Dominican Republic and Mexico, Doc. G/25, atp. 536; and France, Doc. G/7(o), at p. 540. The other two proposals, those of Uruguay and Panama, are cited infra, pp. 34 and 36.
23. Doc. G/7(a)(l), at pp. 552 and 571.
24. Doc. G/7(a)(l), at pp. 552 and 571.
25. See Doc. 2, G/14(g), 3 UNCIO, n. 3, at pp. 495–502.
26. Doc. 2, G/29, 3 UNCIO, n. 3, pp. 622-623; 6 UNCIO p. 555. The major impetus for the Sponsoring Powers’ amendments came from the United States; see the address by Secretary of State Stettinius, 12 Dept, of State Bulletin (June 3, 1945) p. 1008. The text of these proposed amendments appears in 12 Dept, of State Bulletin (May 6, 1945) pp. 851–855.
27. Third Meeting of Committee 1 / 1, 6 UNCIO, n. 3, p. 281.
28. Sixth Meeting of Committee 1 / 1, 6 UNCIO, n. 3, p. 296; and ‘Progress Report of Sixth Meeting of Committee 1/1’, good practice n. 39.
29. Report of the Rapporteur, Subcommittee I/l/A to Committee 1/1, Doc. 723,1/l/A/19, 6 UNCIO, Progress Report of Sixth Meeting of Committee 1/1 n. 3, pp. 699–700. This report was not submitted to, and therefore was not formally adopted by, the subcommittee. However, it represented the Rapporteur's ‘understanding of the sense of the Subcommittee’, and was applauded by subcommittee members when it was presented to the full committee. See the Ninth meeting of Committee 1/1, at p. 317.
30. Also see infra nn. 85, 88 and 95 and associated texts.
31. Report of the Rapporteur, Subcommittee I/l/A to Committee 1/1, Good practice n. 42 at p. 705.
32. Report of the Rapporteur, Subcommittee I/l/A to Committee 1/1, Good practice n. 42 at p. 705.
33. UNCIO, Report of the Rapporteur n. 3, at p. 704.
34. Tenth Meeting of Committee 1/1, at pp. 324–325. 49., at p. 325.
35. Dept, of State Bulletin (June 3, 1945) p. 1011 (emphasis added).
36. Tenth Meeting of Committee 1/1, 6 UNCIO, Report of the Rapporteur n. 3, p. 325.
37. UNCIO, Report of the Rapporteur n. 3, p. 325. See also Russell and Muther, n. 4, at p. 780 and fn. 6 there.
38. Tenth Meeting of Committee 1/1,6 UNCIO, Report of the Rapporteur n. 3, p. 324. The Rapporteur's report did so indicate; see Report of the Rapporteur of Committee 1 to Commission I, Doc. 885,1/1/34, at p. 396. 55. Report of the Rapporteur, Subcommittee I/l/A to Committee 1/1, good practice n. 42 at p. 705.
39. Fifteenth Meeting of Committee 1/1, 6 UNCIO, Report of the Rapporteur n. 3, p. 423.
40. Report of the Rapporteur of Committee 1 to Commission I, Fifteenth Meeting of Committee n. 54 at p. 456.
41. M. Ganji, International Protection of Human Rights (1962) pp. 120–121.
42. See, e.g., The Universal Declaration of Human Rights n. 44 and infra nn. 85, 88 and 95 and associated texts.
43. Verbatim minutes of the Second Meeting of Commission I, 6 UNCIO, n. 3, p. 65. The Report of the Rapporteur of Commission I states that this article ‘received unanimous approbation’ in Commission I; Doc. 1142 1/9, at p. 230.
44. These provisions drew upon the Bruce Committee report of the League of Nations. See Report of the Special Committee, The Development of International Co-operation in Economic and Social Affairs, Special Supplement to the Monthly Summary of the League of Nations, vol. 19 (1939).
45. Doc. 2, G/29, 3 UNCIO, Report of the Rapporteur n. 3, pp. 623,626-627; and Doc. 157, II/3/5,10 UNCIO pp. 299–329.
46. These proposals are included in Docs. 157, II/3/5, and 206, II/3/5(a), vol. 10, pp. 299–370.
47. Doc. 1, G/l, 3 UNCIO p. 19.
48. Doc. 2, G/29, at p. 626. The words added by the Sponsoring Powers’ amendment are emphasised. 69. Russell and Muther, n. 4 at p. 781. See also ‘Draft Report of the Rapporteur of Committee 11/3% p. 4, unpublished files, UN archives, New York.
49. Fifth Meeting of Committee II/3, 10 UNCIO, n. 3, pp. 27–28.
50. Sixth Meeting of Committee II/3, at pp. 32–33.
51. For a background to US objections to the use of the term ‘full employment’ see Russell and Muther, Sixth Meeting of Committee n. 4, at pp. 781–783.
52. For a background to US objections to the use of the term ‘full employment’, at pp. 781–782.
53. Full employment Seventh Meeting of Committee II/3, 10 UNCIO, n. 3, p. 39.
54. UNCIO, Seventh Meeting of Committee n. 3, pp. 39–40. See also Russell and Muther, n. 4, at p. 784.
55. Doc. 2, G/14(t), reproduced in Doc. 157, II/3/5, 10 UNCIO, Seventh Meeting of Committee n. 3, pp. 306–307.
56. Seventh Meeting of Committee, at pp. 306–308.
57. Doc. 2, G/14(l), p. 4; reproduced in Doc. 157, II/3/5, at p. 306. There were, of course, other proposals that sought to strengthen the human rights reference in Chapter I, paragraph 3, discussed above.
58. Russell and Muther, There were, of course n. 4, at p. 784.
59. See below. In the Coordination Committee it was explained that the intention of Committee II/3 had been ‘to reinforce “respect” which has the connotation of passive acceptance, by “obser-vance” which is intended to imply active implementation’. It was also added that ‘ “observance” implies an obligation to change the laws of one's country to implement this article … ’ See Sohn and Buergenthal, n. 3, at p. 511.
60. Observance Report of the Rapporteur of Committee II/3, n. 3, pp. 270–271.
61. Russell and Muther, Report of the Rapporteur of Committee n. 4, at p. 784.
62. Doc. WD 17, II/3/22, Report of the Rapporteur of Committee, at p. 74; and Tenth Meeting of Committee II/3, at pp. 57–58.
63. Doc. WD 17, II/3/22, at p. 74; and Tenth Meeting of Committee II/3, at pp. 57–58.
64. Seventh Meeting of Committee, at pp. 57–58.
65. Tenth Meeting of Committee II/3, p. 58.
66. Tenth Meeting of Committee II/3, p. 58.
67. Tenth Meeting of Committee, at p. 59. 92. Eleventh Meeting of Committee II/3, at p, 83.
68. Idem. See also Report of the Rapporteur of Committee II/3, Good practice n. 84 at pp. 271–272. This report was approved without discussion by Commission II. Verbatim Minutes of Second Meeting of Commission II, 8 UNCIO, n. 3, p. 64. The Rapporteur's report as adopted by Commission II appeared as Doc. 924, 11/12, at pp. 79–93.
69. Ninth Meeting of Committee II/3, 10 UNCIO, n. 3, p. 52.
70. Tenth Meeting of Committee II/3, at pp. 57-58; and Russell and Muther, n. 4 at p. 784.
71. Report of the Rapporteur of Committee II/3, Good practice n. 84 at p. 280. 97. Doc. 2, G/14(l), 3 UNCIO, n. 3,pp. 546–547. In addition, the delegate of Canada proposed that members agree to cooperate fully with each other and with the UN to achieve the stated objectives. See ‘Private Agenda of Chairman (of Committee II/3) for Meeting of May 11, 1945’, unpublished files, UN archives, New York.
72. In addition, the delegate of Canada proposed that members agree to cooperate fully with each other pp. 546–547.
73. Observance n. 71 and associated text.
74. Third report of the drafting subcommittee, Doc. WD 18, II/3/A/3, 10 UNCIO, associated text n. 3, p. 382. See also Russell and Muther, n. 4, at pp. 786–788.
75. Twelfth Meeting of Committee II/3, p. 100.
76. Twelfth Meeting of Committee II/3, p. 100.
77. Sixth report of the drafting subcommittee of Committee II/3, Doc. WD46, II/3/35, at p. 394.
78. Fourteenth Meeting of Committee II/3, at p. 130.
79. Fourteenth Meeting of Committee II/3, at p. 130.
80. Fourteenth Meeting of Committee, at p. 140.
81. Fourteenth Meeting of Committee, at p. 140.
82. Eighth report of the drafting subcommittee II/3/A, Doc. WD66, II/3/A/7, atp. 401.
83. Coordination Committee, 15 UNCIO, n. 3, p. 90.
84. Doc. 1, G/l, vol. 3, pp. 19–20.
85. Doc. 2, G/29, at p. 627.
86. Seventh Meeting of Committee, at pp. 380–381.
87. Eleventh Meeting of Committee II/3, 10 UNCIO, n. 3, p. 84.
88. Report of the Rapporteur of Committee II/3, Eleventh Meeting of Committee n. 84 at pp. 275 and 282.
89. Eleventh Meeting of Committee II/3, 10 UNCIO, n. 3, p. 85.
90. Doc. 1, G/l, vol. 1, pp. 5–6. Para. 7 of the same section proposed to authorize the Assembly to make recommendations for the coordination of the policies of the specialized agencies.
91. Doc. 2, G/29, p. 623. The Sponsoring Powers’ amendment also gave the Assembly the power of examining the ‘administrative budgets’ of the specialized agencies and making recom-mendations to them.
92. Eleventh Meeting of Committee II/3, 10 UNCIO, n. 3, p. 85; and Report of the Rapporteur of Committee II/3, good practice n. 84 at pp. 274, 280.
93. Twelfth Meeting of Committee II/3, p. 101; and Fourth report of the drafting subcommittee, Doc. WD 24, II/3/A/4, at p. 387. 125. Report of the Rapporteur of Committee II/3, good practice n. 84 at p. 274.
94. Coordination Committee, 15 UNCIO, n. 3, p. 54.
95. Doc. 1, G/l, Coordination Committee. vol. 3, p. 3.
96. Coordination Committee, at p. 21.
97. Doc. 157, II/3/5, vol. 10, pp. 300-301; and, First Meeting of Committee II/3, at p. 6.
98. Fourth Meeting of Committee II/3, at p. 22. 131. Doc. 2, G/29, 3 UNCIO, n. 3, p. 627.
99. Respectively proposed by Brazil (Doc. 2, G/7(o)(3)), Haiti (Doc. 2, G/7(b)(l)), the Philippine Commonwealth (Doc. 2, G/14(k», and Panama (Doc. 2, G/7(g)(a)); reproduced in Doc. 157 II/3/5, vol. 3, pp. 325–327. Uruguay also proposed a commission on ‘education and culture’, Doc. 2, G/7(a)(1), reproduced in Doc. 206, II/3/5(a), at p. 339.
100. Thirteenth Meeting of Committee II/3, at p. 122. This reversal in the US position was due to the fact that the ‘unofficial consultants’ to the US delegation favored a full-fledged specialized agency for cultural matters and that negotiations were already under way at the time for the establishment of UNESCO. See Russell and Muther, n. 4, at p. 792.
101. The States which preferred such an approach were Canada and New Zealand. Russell and Muther, unofficial consultants n. 4, at p. 792.
102. Idem. In contrast, the United States was strongly in favor of commissions comprised solely of experts. The Soviet Union, on the other hand, felt that no expert could be independent of his government. Russell and Muther, Russell and Muther n. 4, at p. 794.
103. Fourteenth Meeting of Committee II/3, 10 UNCIO, n. 3, p. 131.
104. Sixteenth Meeting of Committee II/3, at p. 151.
105. Sixteenth Meeting of Committee II/3, at p. 151.
106. The US delegate was strongly committed to the creation of a commission on human rights and to its mention in the Charter. Russell and Muther, Sixteenth Meeting of Committee n. 4, at p. 792.
107. Seventh Meeting of Committee, at pp. 808–809.
108. Doc. 323, p. 677; Russell and Muther, n. 4, at pp. 808–809.
109. Selected Documents, n. 143, at pp. 647–649.
110. Thirteenth Meeting of Committee II/4, Doc. 877, p. 513; Docs. 892, 912, pp. 525 and 533 respectively.
111. Another issue that exercised delegates was the possibility that particular territories might be identified for inclusion in the trusteeship system. These concerns were allayed by the committee chairman, who assured those at the meeting that ‘each delegate on the Committee would have every opportunity to make sure that nothing went into the Charter that would prejudice the rights of his country’. Fifth Meeting of Committee II/4, Doc. 364, p. 446. Russell and Muther, Thirteenth Meeting of Committee n. 4, at pp. 831–832.
112. Doc. 877, Each delegate on the Committee would have every opportunity to make sure that nothing went into the Charter that would prejudice the rights of his country, at p. 514; Russell and Muther, n. 4, at pp. 832–833.