Foreign Relations of the United States, 1950, The United Nations; The Western Hemisphere, Volume II

IO Files: SD/A/C.3/137¹

Department of State Instruction, to the United States Delegation to the Fifth Regular Session of the General Assembly²

restricted

[Washington,] September 5, 1950.

Draft First International Covenant on Human Rights

the problem

What should be the position of the United States with respect to the draft First International Covenant on Human Rights?³

recommendations

1. As a procedural matter, the United States should undertake to secure the consideration of the draft Covenant prior to the Refugee Convention in the Third Committee. The prior consideration of the Refugee Convention would very likely prejudice the views of other delegations against the position of the United States with respect to some aspects of the draft Covenant on Human Rights. For example, provisions on certain economic and social rights are set forth in the Refugee Convention, and the prior consideration of this Convention may result in added pressure by other delegations for the inclusion of articles on economic and social rights in the draft Covenant on Human Rights also.

2. The United States should support the recommendation of the Economic and Social Council that the draft Covenant on Human Rights be reconsidered by the Commission on Human Rights at its 1951 session and should urge that the discussion in the General Assembly concerning the draft Covenant should as far as possible be in general terms only.⁴

3. The United States should support the view that the General Assembly should adopt a resolution recommending that the Commission on Human Rights at its 1951 session take into consideration the views expressed at the 1950 session of the General Assembly and complete its consideration of the Covenant on Human Rights in order that the General Assembly may at its 1951 session approve the final draft of this Covenant.

4. With respect to the four policy issues to be considered in the General Assembly,⁵ the United States should support the following positions:

(a) The first 18 articles of the draft Covenant are basically satisfactory. Certain drafting changes should be made with respect to certain provisions, but since a detailed consideration of each of the articles of the draft Covenant is not contemplated these should be discussed in the General Assembly only if necessary.

(b) Federal state and territories articles should be included in the draft Covenant along the lines of the proposals submitted by the United States to the 1950 session of the Commission on Human Rights.

(c) Articles on economic, social and cultural rights should not be included in the Covenant, but the United States is prepared to join with other countries in inviting the Commission on Human Rights to consider the desirability and feasibility of developing further covenants or taking other measures concerning economic, social and cultural rights.

(d) The present provisions of the draft Covenant on implementation are adequate. However, the United States should explain if necessary that it is prepared to participate in the Commission on Human Rights in the drafting of separate protocols for separate ratification with respect to the right of petition by individuals and non-governmental organizations.

comment

The Economic and Social Council at its July–August 1950 session adopted a resolution recommending that the General Assembly reach policy decisions concerning four issues and to forward these decisions to the Commission on Human Rights for its consideration in redrafting the Covenant on Human Rights at its 1951 session. These four issues are: (a) the general adequacy of the first 18 articles; (b) the desirability of including special articles on the application of the Covenant to federal states, and to non-self-governing and trust territories; (c) the desirability of including articles on economic, social and cultural rights; and (d) the adequacy of articles relating to the implementation of the Covenant.

Additional comments with respect to each of the four issues follows:

(a) General adequacy of the first 18 articles.⁶

A general discussion of this issue should be sufficient. The General Assembly should agree to forward the discussion of this issue, as well as the other three issues, to the Commission on Human Rights for consideration in its further review of the proposed Covenant at its 1951 session. A vote on this issue would not be practical without actual texts, and if texts are to be voted the General Assembly would have to undertake to redraft these articles. It does not seem feasible to vote on “the general adequacy of the first 18 articles” without a detailed consideration of the text of each of these articles. To undertake such a detailed consideration of the first 18 articles would result in a drafting session of the General Assembly with many amendments being considered. A general but full and thorough discussion of these 18 articles without a vote should be sufficient. The resolution adopted by the Economic and Social Council is intended to avoid the redrafting of the Covenant at this session of the General Assembly. The General Assembly will have a further opportunity at its 1951 session to review the Covenant submitted by the Commission on Human Rights and at that session next year it will of course vote on a particular text for each of the articles of the Covenant.

(b) Desirability of including special articles on application of the Covenant to federal states and to non-self-governing and trust territories. Because of the lack of time the Commission on Human Rights at its 1950 session did not consider the language which should be included in the Covenant with respect to federal states and non-self-governing and trust territories.

(1) Federal States

It seems to the United States that a federal state article along the lines of the United States proposal⁷ should be included in the Covenant to make it possible for federal states to ratify the Covenant. The United States is prepared to undertake obligations under the Covenant in areas appropriate for federal action but it is not in a position to undertake obligations under the Covenant beyond these areas. Although many of the obligations of the Covenant are within the scope of federal action, some of them are not. With respect to the latter, the Federal Government of the United States upon its ratification of the Covenant is prepared to bring these matters to the attention of the appropriate authorities of the local States at the earliest possible moment with a favorable recommendation.

(2) Non-Self-Governing and trust territories

The proposal of the United States referred to above for a territories article in the Covenant was submitted to the Commission on Human Rights at its 1950 session to meet two opposing views in the Commission, one view being led by the USSR and the Philippines that the Covenant should be automatically applicable to all the territories of a country upon its ratification or accession to the Covenant and the other view being led by the United Kingdom and France that the Covenant should be extended to the territories of a country ratifying or acceding to the Covenant at the option of that country. The United States proposal would retain the optional feature urged by the United Kingdom and France, but would add to it the obligation to take the necessary steps as soon as possible to extend the application of the Covenant to the territories of that country subject, where necessary for constitutional reasons, to the consent of the Governments of such territories. France expressed its acceptance of this United States proposal at the 1950 session of the Commission on Human Rights. Discussions are proceeding with the United Kingdom as to its views. At discussions relating to other United Nations conventions, the United Kingdom has expressed its acceptance of a United States proposal along these lines. It is unlikely that the Communist bloc will accept this proposal. It is also unlikely that the Philippines and certain other non-administering countries will accept the language submitted by the United States. It is, however, language that is far more acceptable to the United States than the original proposals of the United Kingdom and France, and at the same time it is designed to meet the problems of such countries relating to the application of the Covenant to certain of their territories. The United States should explain that it will vote for this proposal, but it need not press for its acceptance by other delegations.

As far as the United States is concerned, we do not need a territories article in the Covenant. When the United States ratifies the Covenant, it is expected that the United States will, following its normal practice, at the same time make the provisions of the Covenant applicable to its territories. We do not need to secure the consent of our territories prior to the extension of the provisions of the Covenant to them.

(c) Desirability of including articles on economic, social and cultural rights.⁸

The United States is particularly anxious for the reasons set forth below, that additional articles not be included in the Covenant on Human Rights. The United States is prepared, however, to join with other countries in inviting the Commission on Human Rights to consider the desirability and feasibility of developing further covenants or taking other measures concerning economic, social and cultural rights as well as other categories of rights in the civil and political field.

The articles now in the draft Covenant on Human Rights represent the result of three years of intensive work on this document by the Commission on Human Rights. The substantive provisions of this Covenant have been circulated twice to Member Governments of the United Nations for comment, once in 1947 and again in 1949. The Commission at its 1948 and 1950 sessions considered these comments of Member Governments in connection with its revision of the articles of the Covenant. The Covenant should accordingly be completed along the lines of its present provisions without the addition of other articles.

The United States supported the view expressed in the Commission on Human Rights at its 1950 session as embodied in a resolution adopted by the Commission that the Commission should consider at its 1951 session additional articles proposed to the Commission and proceed with the consideration of additional covenants and measures dealing with economic, social, cultural and political and other categories of human rights. It was made expressly clear in this resolution that the (Covenant on Human Rights is in essence only one of a series of covenants and measures proposed to be adopted in the field of human rights. The Economic and Social Council on August 9, 1950 approved this resolution. It does not seem advisable nor feasible to undertake to include all possible rights in this one Covenant. To do so would prejudice the completion and adoption of this first of a series of covenants and measures in the field of human rights.

(d) Adequacy of articles relating to implementation of the Covenant.

The present provisions of the draft Covenant on Human Rights concerning its implementation seem adequate to the United States, and the United States has no changes to propose with respect to these provisions (Article 19 to 41). These articles authorize only States Parties to the Covenant to file complaints with respect to violations. Proposals to include provisions in the Covenant to extend the right to complain to non-governmental organizations and individuals were rejected by the Commission. The recommendation of the Commission on Human Rights to limit the right to complain with respect to violations of the Covenant to only States Parties to the Covenant should be supported in the General Assembly, and the provisions of the Covenant should not be modified to extend this right to non-governmental organizations or to individuals.⁹

It seems to the United States that the carefully prepared provisions on implementation in the draft Covenant should be supported in the General Assembly without change.

It will be a considerable step forward in the field of human rights when this draft of the Covenant on Human Rights is approved by the General Assembly even without the inclusion of provisions on the right of complaint by individuals and non-governmental organizations. In any event it is expected that the Commission on Human Rights will at later meetings of the Commission undertake the drafting of proposals on the right of complaint or petition by individuals and nongovernmental organizations. The United States has consistently indicated in the Commission on Human Rights its willingness to participate in such an undertaking. Accordingly, the United States may support in the General Assembly a proposal that the Commission on Human Rights study further the question of the implementation of the Human Rights Covenant including the filing of petitions by individuals and non-governmental organizations. Any text on this subject prepared in the Commission on Human Rights should be drafted in separate protocols for separate ratification by States prepared to ratify them and not be an integral part of the Covenant itself in order that States not prepared to accept the right of complaint or petition by individuals and non-governmental organizations at this time will be able to ratify the Covenant itself with its present provisions on its implementation.

1. Short title for the master files of the Reference and Documents Section of the Bureau of International Organization Affairs, Department of State.
2. The General Assembly was scheduled to convene at Lake Success, New York, on September 19. For information regarding the composition of the United States Delegation, see pp. 24 ff.

3. The Draft First International Covenant on Human Rights was the work of the Commission on Human Rights, one of the so-called “nuclear” commissions of the Economic and Social Council (ECOSOC). The Commission was organized in January–February 1947, and the principal achievement of its first three sessions in 1947–1948 was the drafting of the Universal Declaration of Human Rights (see footnote 2, p. 516). Concurrently, but necessarily with less attention, the Commission had in preparation a draft covenant on human rights which unlike the Universal Declaration was to constitute an international agreement imposing legal obligations and conferring legal rights.

   In the same resolution in which it accepted the Universal Declaration, the General Assembly charged ECOSOC and the Commission on Human (Rights to draft a Covenant on Human Rights on a priority basis (Resolution 217 (III E), December 10, 1948). The Commission addressed itself to this task in its fifth and sixth sessions and March–May 1950, respectively). For reports of the proceedings of the Commission on Human Rights at these sessions, see United Nations, Official Records of the Economic and Social Council, Fourth Year: Ninth Session, Supplement No. 10, “Report of the Fifth Session of the Commission on Human Rights” (hereafter cited as ESC (IX), Suppl. No. 10); and United Nations, Official Records of the Economic and Social Council, Fifth Year: Eleventh Session, Supplement No. 5, “Commission on Human Rights Report of the Sixth Session” (hereafter cited as ESC (XI), Suppl. No. 5).

   For the text of the draft covenant as formulated at the sixth session of the Commission on Human Rights and forwarded to the Economic and Social Council for consideration at its 11th session in July–August 1950, see ibid., pp. 15 ff. For an earlier, partially annotated text, reflecting the views of certain governments on particular articles, see ESC (IX), pp. 17 ff.

4. The original United States position at the ECOSOC session was that the Council should simply transmit the draft covenant to the fifth session of the General Assembly without substantive discussion as the matter had already been examined so exhaustively by the Commission on Human Rights (State Department instruction to the United States Delegation to the 11th session of the Economic and Social Council, Doc. SD/E/434, June 18, 1950, not printed; IO Files). ECOSOC, however, had engaged in deliberations on the substantive, content of the draft articles and had recommended that the General Assembly request further examination of the draft covenant by the appropriate bodies in 1951; see below.
5. These issues had been delineated by ECOSOC at its 11th session. For an informative surrey of the issues posed here, see the “Note by the Secretary-General,” relating thereto, in United Nations, Official Records of the General Assembly, Fifth Session, Annexes, vol. ii, fascicule relating to agenda item 63, pp. 3 ff. (hereafter cited as GA (V), Annexes, vol. ii, agenda item 63).
6. These articles dealt with political and civil rights.
7. The United States had insisted on a federal-state article from the beginning; see ESC (IX), Suppl. No. 10, p. 26.

8. The initial proposals for such articles were made by Australia and the Soviet Union at the fifth session of the Commission on Human Rights (May–June 1949). The United States position on this matter was formulated in December, 1949, as follows:

   “II. New Articles

   “Many of the proposals submitted by Australia and the USSR … deal with subjects which, in keeping with the spirit and intent of the Universal Declaration of Human Rights, would lend themselves to incorporation in international agreements ‘to secure their universal and effective recognition and observance.’ Depending upon the subject matter to be dealt with, such agreements, in these fields might take the form of separate, detailed conventions or of additional articles incorporated in later, separate protocols to the International Covenant on Human Rights. [A footnote at this point in the source text reads: “The subject of trade union rights is of course already provided for in Article 19 of the draft Covenant.”]

   “The United States believes, however, that the drafting of articles dealing with the types of subjects covered in many of the Australian and USSR proposals should be undertaken only after the most careful consideration and the fullest possible exploration, especially in the light of the differing levels of economic and social development attained or attainable in each of the Member States, of what provisions can, with any degree of feasibility and efficacy, be included in such agreements. Such consideration and exploration will take considerable time.

   “The Commission has already devoted several years to the development of the articles in the draft Covenant. To undertake, at this time, the consideration, exploration and drafting of articles dealing with many of the subject matters dealt with in the new articles proposed by Australia and USSR would, in the view of the United States, seriously hamper the completion of the Covenant at the next session of the Commission. It is important, the United States feels, that every possible effort should be made for the completion of the Covenant at the next session of the Commission in order that the draft Covenant may be forwarded to the Economic and Social Council in time to enable the Council to submit the draft covenant to the General Assembly for its consideration at its fifth (1950) session.

   “However, in order that there may be the speediest possible progress made in the progressive developments of such international agreements as may be found feasible of being undertaken to secure the universal and effective recognition and observance of the human rights set forth in the Universal Declaration, the United States proposes that the ‘Commission, at its next session, begin the exploration of the extent to which it would be feasible to include in subsequent conventions or protocols matters dealt with in the Universal Declaration but not to be included in the initial covenant on human rights. It is the feeling of the United States, that, in the course of such exploration, the Commission not only should consider carefully the report of the Secretary-General undertaken, pursuant to the Commission’s resolution at its fifth session, with respect to the activities of other bodies of the United Nations and the specialized agencies in matters within the scope of Articles 22–27 of the Universal Declaration but also should obtain the views of and the facts available to such bodies and agencies bearing upon the measures which may, in the light of economic development among the Member States, be undertaken with respect to these matters.” (IO Files, 6th Session of the Commission on Human Rights, U.S. Delegation—Position Book, Tab A, Doc. SD/E/CN. 4/44, not printed)

9. From the beginning the United States held to the “only States Parties to the Covenant” principle. It was incorporated into the draft articles formulated at the fifth session of the Commission on Human Rights at the instance of the United States and the United Kingdom, jointly. Provision was made for a rather elaborate complaints procedure for utilization by “States Parties,” centering on a Human Rights Committee. See ESC (IX), Suppl. No. 10, p. 48 and articles 19–41 of the draft text prepared at the sixth session of the Commission on Human Rights (ESC (XI), Suppl. No. 5, pp. 18 and 19).