REPORT OF THE COMMITTEE ON UNITED NATIONS

REPORT OF THE COMMITTEE ON UNITED NATIONSSource: Proceedings of the Section of International and Comparative Law (American BarAssociation), (SEPTEMBER 5-6, 1949), pp. 190-210Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25742832 .

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190 SECTION OF INTERNATIONAL AND COMPARATIVE LAW

its activities to a survey and study of

teaching materials in the fields of in

ternational and comparative law. At the present time there is little if any

uniformity in the use of such mate

rials, and information concerning the sources and availability of materials is by no means widespread. It was

the feeling of the committee that a

long-range project might meet a real need in this direction by producing results not only of practical utility but of lasting value in the two fields in

question. Since the date of the earlier report

preliminary steps have been taken to make the accomplishment of a project of this kind a concrete possibility. In the first place, arrangements have been made for the cooperation and assist ance of the corresponding committee of the Association of American Law

Schools, the Committee on Interna tional and Foreign Law. It is obvious that the two committees are interested in the same matters, although from dif ferent points of view, and that their labors are likely to be more productive if pooled in joint effort. In the sec ond place, conversations have been initiated under this arrangement with one of the New York foundations with a view to the development of a

project designed to fulfill the objec

tives of the two committees. If these conversations progress satisfactorily, it is hoped that they may produce at least three important consequences. The two most immediate would be the

provision of means for a more de tailed survey of the question of ma

terials and the holding next year, un der the joint auspices of the two com

mittees, of an institute to be devoted to a discussion of incidental problems and open to members of the practicing and teaching professions. The more remote consequence would be the es

tablishment on a more permanent basis of machinery adequate to ex

pand and to continue the work of

gathering, coordinating, translating and making available for distribution the more significant and worthwhile

materials in the fields of international and comparative law.

Respectfully submitted, Philip W. Thayer,

Chairman Miguel A. de Capriles Felix H. Garcia Alfred L. Gausewitz John N. Hazard Schuyler W. Jackson Thomas H. Mahony C. T. McCormick Edward D. Re John Wolff

REPORT OF THE COMMITTEE ON

UNITED NATIONS RECOMMENDATION 11

Resolved, that the American Bar Association approves ratifica tion of the Convention on the Prevention and Punishment of the Crime of Genocide now pending before the United States Senate subject to effective reservations as follows :

1. That the words ' ' with intent to destroy in whole or in part a

national, ethnical, racial or religious group as such" in Article II refer to all the inhabitants of a country who are identifiable as of the same national, ethnical or racial origin or of the same religious belief and that none of the acts enumerated in the sub-paragraphs

Adopted by the Section but not adopted by the House of Delegates.



general committee reports 191

of the said Article II shall be deemed to have been committed with the requisite intent to destroy such a group in whole or in part unless such acts directly affect thousands of persons.

2. That the phrase "mental harm" in Article II (b) means per manent physical injury to mental faculties of members of a group, such as that caused by the excessive use or administration of nar cotics.

3. That the provision "direct and public incitement to commit genocide'* in sub-paragraph (c) of Article III shall not have any application to the United States, because to render such incitement unlawful in the United States it is sufficient to outlaw conspiracy to commit genocide as is done in sub-paragraph (b) of Article III and the attempt to commit genocide as is done in sub-paragraph (d) of Article III without specifically enumerating the act of direct and public incitement as contained in sub-paragraph (c) of Article III.

4. That the phrase "complicity in genocide" in Article III (e) means "aiding, abetting, counseling, commanding, inducing, or

procuring the commission of genocide.*' 5. That the phrase "responsibility of a state for genocide** in

Article IX does not mean responsibility of a national government to pay damages for injuries to its own nationals and that this

phrase does not mean that a national government may be prose cuted as a defendant in any case arising under the convention.

6. That Articles I through VII of the convention are not self

executing in the United States; that federal legislation will be necessary to carry out the provisions of these articles, and such

legislation will be limited to matters appropriate under the con stitutional system of the United States for federal legislation.

7. That a person charged with having committeed an act in the United States in violation of the statutes enacted to implement the convention shall be tried only by the federal court of the district wherein the act is alleged to have been committed.

Justification

1. The slaughter of huge groups of

people, the indiscriminate killing of

men, women and children who fit into some religious or other classification, the killing of them merely for the

sake of killing is the most abominable

of all crimes. 2. People from all the earth meet

on common ground in condemning a

crime so heartless and barbaric as

genocide, and this international unity of thought presents a compelling op

portunity for action. The main ob

jective can be effected even though reservations are necessary to maintain

individual legal systems.

3. Genocide is a crime with inter national effects and reverberations be

cause, when the members of a group in one country are murdered because of their group membership, violently hostile feelings are aroused in the hearts of all members of that group in other countries. Hostile feelings can easily lead to active hostilities.

Hostilities anywhere affect peace everywhere.

4. Religion is international. It knows no national boundaries. Hence the destruction in a country of a re

ligious group must in the nature of the case arouse instantaneously in all




other members of that group every where deep-seated resentment.

5. A convention is necessary be cause under the Nuremberg law geno cide is not an international crime, if

not committed in connection with or

during war.

6. Recognizing that the facts are as

set forth above, the United Nations for two years has had some of the

ablest lawyers in the world at work

drafting an international criminal law

against genocide and the convention

is the result. It is a product of the

work of lawyers from the Orient as

well as the Occident; lawyers with

civil as well as common law back

grounds; lawyers speaking many dif ferent languages.

7. Naturally, when such an instru ment is laid down alongside the high ly specialized legal system of any one

country with a view to being inte

grated therein there are some places where it does not fit. Instead of be

ing rejected in tot o it should be

brought into relationship by appropri ate reservations. That is what we

believe we have done as regards the convention and the legal system of the United States by the reservations that we propose.

8. Under the reservations that we

suggest the treaty will not be self-ex

ecuting, and only that implementing legislation will be required to be

adopted by Congress that is appropri ate for federal enactment under our

constitutional system.

Recommendations of the Special Committee of the House of Delegates on the Genocide Resolutions 2

Be It Resolved, That it is the sense of the American Bar Associa tion that the conscience of America like that of the civilized world revolts against genocide (mass killing and destruction of peoples) ; that such acts are contrary to the moral law and are abhorrent to

all who have a proper and decent regard for the dignity of human beings, regardless of the national, ethnical, racial, religious or polit ical groups to which they belong; that genocide as thus under stood should have the constant opposition of the government of the United States and of all of its people.

Be It Further Resolved, That the suppression and punishment of genocide under an international convention to which it is proposed the United States shall be a party involves important constitu tional questions; that the proposed convention raises important fundamental questions but does not resolve them in a manner con sistent with our form of government.

Therefore, Be It Resolved, That the convention on genocide now before the United States Senate be not approved as submitted.

Be It Resolved Further, That copies of the report of the Special Committee on Peace and Law Through United Nations and the sug gested resolutions from the Section of International and Compara tive Law be transmitted, together with a copy of this resolution, to the appropriate committees of the United States Senate and House of Representatives.

2 Compromise resolution adopted by the House of Delegates.




RECOMMENDATION II

Resolved, That the American Bar Association approves the adop tion of a Covenant on Human Rights, subject to the following:

1. That the Covenant shall embody rights relating to the right to life, liberty, property, freedom of speech and thought and of the press, protection against torture, slavery, forced labor, physical mutilation, arbitrary arrest or detention, protection against im

prisonment for failure to fulfill a contractual obligation, freedom of movement and residence within a country, freedom to leave a

country, freedom to return to one's own country, right to a fair and public hearing before an independent and impartial tribunal, protection against ex post facto laws, right to recognition as a per son before the law, freedom of religion and peaceful assembly, free dom to form trade associations, and equal protection of the law.

2. That provisions relating to compensation for unlawful arrest and erroneous conviction of crime such as those in Articles 9 and 13 of the draft Covenant and so-called economic and social rights have no place in such an instrument.

3. That it be made expressely clear that the articles of the Cove nant are not to be self-executing upon ratification of the Covenant, and that the obligation of the United States in carrying out the

provisions of the Covenant is that it shall give effect to the rights set forth in the Covenant through the adoption of federal legisla tion as to matters now approprate under our constitutional system for federal action, when the same is necessary to supplement exist

ing legislation, and that the articles of the Covenant will not become law as to matters now appropriate under our constitutional system for state action unless and until the states voluntarily adopt im

plementing legislation, when necessary to supplement existing legis lation.

4. That no provision be made in the Covenant for an Interna tional Court of Human Rights.

5. That no provision be made in the Covenant for the right of

complaint to an international body being vested in individuals and

organizations; this right should be confined to national govern ments.

6. That the article for implementation be limited to authorizing complaints by one national government against another and provid ing for procedures through which the complaint will and can cause the matters involved in the complaint to be carefully investigated by an appropriate fact-finding body whose findings will be made

public. Justification

1. One of the basic causes of war

is discontent of individuals, and dis

content of individuals can and does

derive from extensive and repeated

acts of injustice visited upon them by their governments. Certain of the hu

man rights which we have enumerated in our proposal, if denied to the in

7




habitants of any country, can produce a smoldering anger that in turn can be excited into violent and aggressive action.

2. Others of the rights which we

have enumerated, if guaranteed to

and enjoyed by the inhabitants of a

country, can and will constitute the most effective safeguards possible against arousing the people to the

support of aggression. Among these are the right to freedom of speech and the press, freedom of movement within a country, to leave a country, and to return to one's own country;

impartial trial, protection against ex

post facto laws and freedom of re

ligion and assembly. Where those

rights are accorded it will always be difficult if not impossible for a dic tator to gain a foothold, much less

whip a nation into the frenzy neces

sary before an aggressive war can be

commenced or maintained. 3. The guarantee, observance and

enjoyment of the rights that we en

dorse in the world will most assuredly bring to practical fruition some of the ideals for which two world wars have

been fought by the United States. 4. The suggestions made by us for

embodiment in the final covenant will, if adopted, prevent the covenant from

being self-executing and will protect the existing division and allocation of

powers between our federal govern ment and the states.

5. In connection with international

agreements such as this, where they are drafted by the United Nations for adherence by the member nations, the

only feasible method of procedure is for each national government to at tach to its ratification of the same

such reservations and interpretations as are necessary in its judgment to

protect its own individual legal sys tem.

6. Our recommendation enables the American Bar Association, which has

repeatedly endorsed the United Na

tions, to take affirmative rather than

negative action on this important pro ject and to support our country in

fulfilling the obligations relating to the promotion of human rights that it assumed when it signed and ratified the charter.

Recommendation of the Special Committee of the House of Delegates on the Covenant on Human Rights

Resolved, That the Special Committee on Peace and Law Through United Nations and the Section of International and Comparative Law be authorized, in response to the request of the State Depart ment of the United States, to transmit to it the written reports of the special committee and the Section and such other comments on the proposed Covenant on Human Rights as they may deem ap propriate; also, transmit such comments as they may have upon the Covenant to the appropriate authorities of the United Nations.

REPORT

A. The Draft Covenant on Human

Eights

The draft Covenant on Human

Rights has been prepared by the Com mission on Human Rights and has

been submitted to the various govern ments that are members of the United Nations for comment. The Commis

sion has fixed January 1, 1950, as the final date on which proposals concern

ing the draft Covenant should be re ceived by its secretariat. Because of the importance of a Covenant on

Human Rights, if agreed to by the United States and followed up by national and state legislation, our



GENERAL COMMITTEE REPORTS 195

committee has given it careful con

sideration. We approve a Covenant on Human

Rights that embodies rights relating to the right to life, property, pro tection against torture, slavery, forced

labor, arbitrary arrest or detention, protection against imprisonment for failure to fulfill a contractual obliga tion, freedom of movement and resi

dence, freedom to leave a country, freedom to return to one's country, right to a fair and public hearing before an independent and impartial tribunal, protection against ex post facto laws, right to recognition as a

person before the law, freedom of

religion, assembly and to form trade

associations, and equal protection of the law. Such a covenant will carry into effect the mandate of the Charter of the United Nations that the organ ization shall "promote . . . universal

respect for, and observance of, human

rights and fundamental freedoms for all without distinction as to race, sex,

language, or religion." Such a cove nant will be in line with the official and public statement made by the chairman of the United States dele

gation at San Francisco at the time

the human rights sections of the Charter were under consideration. He

said,

"They [the peoples of the world] rightly demand the active defense and promotion of basic human

rights and fundamental freedoms. It is a matter of elementary justice that this demand be answered af

firmatively. That is the compelling purpose of the [human rights] amendments which the four spons oring governments propose."

Such a covenant will tend to bring to

reality the vision and hopes of those

who bore with fortitude the sacrifice of the lives of their sons and daugh ters in World War II, and the vision

and hopes of those sons and daugh ters themselves who were fighting for a fairer and better world.

The kind of covenant that our com

mittee endorses will not only be a leg

islative effectuation of the Charter's

provisions relating to human rights, but it will also be an important con tribution to peace. Not the least of the world's problems today are those that derive directly from fallacious

thinking about the nature of enduring peace. Force to compel peace is over

emphasized. A peace maintained by means of the terror of force is only an armed truce. Actually, the peace that will endure, and the peace that is worth dying and living for is one

that is the by-product of a well di rected world. This is not by way of

saying that we do not support all of the steps of a defensive nature that the peace-loving nations are now tak

ing, because we do. We are not, how

ever, under the illusion that the world will have achieved a satisfactory peace if it must continue always to live as an armed camp. Hence we perceive in a proper covenant, and in a world

where its principles and provisions are obeyed, the kind of peace that has a real chance of lasting through the

ages. As was stated so ably by the United States delegate to the Third General Assembly of the United Na tions "Enduring peace must rest

upon the acceptance of common standards of human rights that can

command the willing allegiance of all

humanity. ' '

The relationship of the provisions of such a covenant to enduring peace are simple and direct. Had the pro visions of such a covenant as we en dorse been the daily practices of pre

World War II Germ?ny, it is incon ceivable that the Nazis could have

gained the stranglehold on that na

tion's polity that they did. Were the

provisions of such a covenant the daily

practices of present-day Russia, the

stranglehold on that nation's polity now held by the Politburo would vanish overnight. While the incorpo ration of great principles of human

rights into a covenant would not ipso facto make of them realities, it is the first step.

The American Bar Association has



1% SECTION OF INTERNATIONAL AND COMPARATIVE LAW

many times endorsed the United Na tions Charter. Its support must not now weaken as the organization's agencies begin to function and make real in detail the Charter's grand de

sign. The Association's approach to the consideration of these matters

must be positive?not negative. That is why we begin this report with a

statement of those things that we en dorse about the proposed Covenant; not, perchance, the aspects of the doc ument which we think need correction.

But this draft Covenant does need modification and correction. It must be made plain in the Covenant, with out the slightest possibility of misin

terpretation, that the Covenant shall not be self-executing?that when and if it is approved by the Senate it will not be a piece of ready-made legislation then and there binding up on the "judges in every state" under the sixth article of the Constitution. The draft Covenant attempts to pre vent the Covenant from being self

executing in Articles 2 and 24. These articles need more study. The con clusive effect of these articles as in surance that the Covenant shall be

binding only if effectuating legisla tion has already been enacted or shall be enacted by the Congress and the state legislatures within their respec tive constitutional jurisdictions is weakened by the frequent use of the

present tense in the Covenant begin ning with Article 11. E.g., "Every one has the right to liberty of move

ment, etc." instead of "Everyone shall have, etc." In other words, the use of the present tense tends to pro duce the impression that the provi sions as to those rights when it is used are self-executing, anything in Ar ticles 2 and 24 to the contrary not

withstanding. There may have been some sound purpose in this variable use of the tenses but we believe that that purpose should give way to the

imperative necessity that the Covenant shall not even remotely create the im

pression that it will be binding ex

cept as legislation has been or shall

be enacted pursuant to the provisions of Articles 2 and 24.

Changes should be made in Article 24 as proposed by the United States so as to make the Covenant clear that it will be the courts of our country acting under our Constitution that will finally decide whether the federal or state governments shall enact ef

fectuating legislation, and not the "federal government.** We would remind our representatives on the

Human Rights Commission of the

language in the famous Kentucky Resolutions of 1798:

"That the government created by this eompaet [the Constitution] was not made the exclusive or final

judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its power.

* '

The draft Covenant deals with some areas which, while important, are

hardly of the magnitude to justify in clusion in such an instrument. An

example are the provisions relating to compensation for unlawful arrest and erroneous conviction.

There is much ambiguity. An il lustration is Article 22. While it is obrious what the draftsmen were seek

ing to say in this article, it is so am

biguous that they may have said too much. The literal construction of the

language of Article 22 (1) could lend itself to the argument that it would be unlawful to propose an amendment to the Covenant!

There is considerable in the way of

faulty rhetoric in the document, and some bad grammar.

It is our understanding that the per sons responsible for the formulation of the draft Covenant are conscious of the justice of some of the above criticisms. They say in defense that what they aimed at in the beginning was sound substance; that as the measure proceeds on its way through the legislative process its imperfec tions of style and verbiage will be cured.




So-called economic and social rights are not and should not be included in the Covenant. In general, we agree with the remark that Voltaire is sup posed to have made that a man's

government has hardly discharged its full obligation to him when it grants him the equal protection of the law but at the same time arranges things so that regardless of his efforts dili

gently to help himself he has to sleep under bridges! Nevertheless, we do not think the nations of the world at this time are in position to take on

the mandatory obligation to provide social and economic rights?if rights they are. Social and economic rights

must await an evolutionary develop ment of world opinion. At present these so-called rights are recognized as such, by only a very few of the more recently adopted constitutions.

B. Implementation of the Covenant on Human Rights

Implementation the Covenant needs, and must have. It is difficult to see how a covenant on human rights will serve any useful purpose, if it is not

implemented. The whole object of this piece of international legislation is to create an obligation, the viola tion of which can be complained of in a proper forum with appropriate re sults. What the particulars of im

plementation should be presents seri ous difficulties.

We definitely oppose an interna tional court of human rights with

compulsory jurisdiction. We oppose the right of complaint being vested in individuals and organizations; this

right should be confined to states.

Some, but not all of us, feel that the

substance of the implementation pro

posals of the United States and the United Kingdom are sound. That

plan is to set up machinery which

upon complaint by a state will cause

the matter to be carefully investigated by an appropriate fact-finding body; its findings will be made public; the

remedy of violations will be left to

the force of an informed world pub

lie opinion. We feel that any effort to deal with violations of the Covenant more stringently than this could and

probably would be divisive of the

world, rather than unifying in its effect.

C. The Genocide Convention

The Nuremberg ruling that genocide is a crime against international law, and punishable, applies only to acts committed during or in connection with war. The Convention for the Prevention and Punishment of the Crime of Genocide that has been ap proved by the General Assembly of the United Nations for adoption by its member nations is designed to fill in the gap created by the Nuremberg ruling, and make of genocide a crime no matter when committed.

The necessity for a genocide con vention is very real. Genocide has

repeated itself throughout history al most with the regularity of a biolog ical law. Widely known cases include the destruction of Carthage by the

Romans, the extermination of the Armenians by the Turks, the pogroms against the Jews in Czarist Russia and

Rumania, and the massacres of the

Albigenses and Waldenses, the Her reros, and the Christian Assyrians. The latest case of genocide, and the one that has stimulated the civilized world to determine that never again shall this happen, is the destruction of six million Jews, several million Slavs and all of the gypsies of Eu

rope by the Nazis. The Genocide Convention, unlike the

draft Covenant on Human Rights, which is now in the committee or

commission stage, is presented as a

finished document, ready for accept ance by the nations, or rejection. We do not have the right to offer sugges tions for improvement in the language of the convention ; as to its language, we must take it or leave it as it is. But we do have the right to make

suggestions for reservations which, if

adopted, will have the effect of mak

ing the improvements in the conven




tion which we would wish. Our com

mittee calls attention to the fact that Article II (b) should be clarified as

to the exact meaning of "mental

harm"; that Article III (c), which condemns "incitement to commit

genocide ' ' should probably be omitted

as in conflict with the doctrine of freedom of speech, that Article III

(e) which condemns "complicity in

genocide'' is too broad, maybe, for a criminal law and that Article IX

contains the phrase "responsibility of a state for genocide" the exact

implications of which should be made clear. We recognize, however, that no piece of legislation, much less a

piece of international legislation, can

go through the mill of discussion, de bate and amendment in two or three different languages between and

among conferees having a multitude of different national backgrounds and come out perfect. Domestic legisla tion?even our own American Con stitution?is not free of imperfections and ambiguities. Several of the pro visions of the convention should be

subjected to reservations if and when

approved by the United States Senate. It is quite clear from the terms of

the instrument that it is not self

executing as to the vital penal por tions thereof. It will be carried into effect in respect to penalties and the other incidentals of a criminal law in so far as the United States is con

cerned only when the Congress has enacted the necessary legislation in accordance with our Constitution. We

quote in full the important language of Article V:

"The contracting parties under take to enact, in accordance with their respective constitutions, the

necessary legislation to give effect to the provisions of the present con vention and, in particular, to pro vide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III."

We note that under the provisions of Article VI persons charged with

acts condemned by the convention shall be tried by no tribunals except those of the state "in the territory of which the act was committed'* un

til and unless the jurisdiction of an international penal tribunal is def

initely accepted by the United States. There is no movement on foot now that the jurisdiction of any interna tional penal tribunal shall be accepted. In fact, no such international penal tribunal has been organized.

D. Strengthening the United Nations

There have been introduced in the 81st Congress several resolutions de

signed by their authors to strengthen the United Nations. Senate Resolu tion 56 and House Resolution 77 are

identical and are to the effect that it is the sense of the Congress that it should be a fundamental objective of the foreign policy of this country to

support and strengthen the United

Nations, and to seek its development into a world federation open to all

nations, with defined and limited

powers adequate to preserve peace and prevent aggression through the

enactment, interpretation and enforce ment of world law.

Senate Resolution 57 requests the President to invite the North Atlantic Pact nations to name delegates who shall meet in a federal convention to

explore the possibilities of applying among them within the framework of the United Nations the principles of free federal union.

Some of us are considerably in

trigued by the possibilities of the so-called "federal convention*" that would be called by Senate Resolution 57. What if such a convention should be called and it should turn out to be an analogue to the Annapolis meet

ing of September 1786! At that time, commissioners from a few of the states met with terms of reference confined to "consideration of the trade and commerce of the United

States, etc.** As they explored the

problems of trade and commerce they




perceived that those problems were intertwined with other and larger problems. And so they initiated a movement which led to the Phila

delphia convention where all of the

governmental problems of the entire Confederation were constructively considered. A few of the committee ask themselves this question: Is it

beyond the bounds of possibility that the delegates to a convention held

pursuant to Senate Resolution 57

might set out for Annapolis and wind

up in Philadelphia? Senate Resolution 133 is designed

to advise the President that it is the sense of the Senate that there should be a revision of the United Nations Charter removing the paralyzing veto

right in defined matters of aggression, averting the threat of atomic catas

trophe, lifting the back-breaking load of the armament race and establishing an effective but tyranny-proof inter national police force under a workable

Security Council and World Court.

Our committee does not recommend that these resolutions be either en dorsed or condemned. We feel that the committee hearings that will re sult from the introduction of these resolutions will serve to keep alive the idea that progress must be made to

ward a more and more competent world order. In so far as the par ticular terms of Senate Resolution 56 and House Resolution 77 are con

cerned, most of the committee feel that these resolutions probably stress too much the idea of federalism. The

United Nations will, and in fact must, eventually evolve into something that

mayhap will properly be called a

world government. Whether this world order will take the form of a federa tion like the United States or an asso

ciation like the British Commonwealth of nations or will be sui generis, may be along the lines of the constitution

promulgated by the Committee to

Frame a World Constitution, or an

organization of regional groups of

nations, only time can tell. This much

we know: society, when it is at work on its governmental problems, is ad Tioc-minded and bit-minded. By this

we mean that when society is in the

process of evolving new governmental forms it is intensely practical and

pragmatic; and, except in the rare cases of revolutions, proceeds bit by bit. We see nothing in the present situation that makes us think that this uniform course of history will be

departed from as the world evolves its ultimate form of government.

The Covenant on Human Bights and the Genocide Convention are inci

dents, we think, in the evolution of the new world order. If the method of international legislation which they exemplify proves successful, they may be the prototypes of many other sim ilar enactments; if it proves unsuc

cessful, then some more closely inte

grated procedure?say a world parlia ment?could be the answer.

We do recognize this about the United Nations in its present form, veto and all: there are a hundred

agreements among the nations today for every single disagreement. Under the auspices of the United Nations, within so short a time as only the last twelve months, problems of appalling acuteness have been brought to peace ful and acceptable adjustments. We

refer, of course, to Palestine, the Berlin blockade and Indonesia.

We think that a government for world affairs?to use Judge Wilkin's wise phrase?is society's inevitable and much to be desired destination.

We do not believe, however, that it is either possible or desirable to try to mushroom such a government over

night by fiat. The sequence must be

confidence, community, constitution ; not the reverse. And on the principle that in human affairs it is most gen

erally best to use what you have and add to it, to proceed from the known to the unknown, we think the problem of a final world order should be worked out through the United Na

tions.




E. Declaration on the Rights and

Duties of States

The International Law Commission was instructed by the General Assem

bly in the year 1947 to prepare a Dec

laration on the Rights and Duties of

States. It has now completed its task

and has a draft declaration ready for

presentation to the next meeting of

the General Assembly. With great respect to the commis

sion and its membership, some of our

committee have one comment to make in regard to this draft Declaration. The Declaration states the rights and duties of states, but the document does not contain any intimation that it should be a duty of the modern state ever to limit its sovereignty for the purpose of bringing about a world order. We call attention to the fact that in modern constitutions, that is to say, constitutions that are being presently adopted, forward-looking statesmen definitely anticipate the

possibility and probability that if en

during peace is ever to be attained, sovereignty will have to be limited. It seems to some of us, therefore, that it would not be out of order to com

ment that the draft Declaration on the Rights and Duties of States might properly be amended by the addition of one more article which would be a

paraphrase of a section of the pre amble of the Constitution of the Fourth French Republic and would read as follows:

"On conditions of reciprocity each nation has the duty to agree to limitations of sovereignty necessary for the organization and defense of

peace.*"

In this connection, it is interesting to know that the legislatures of five states of the United States have, pur suant to Article V of the Constitution,

made application to the Congress that a convention be called for the pur pose of proposing constitutional amendments appropriate to authorize the United States to negotiate with

other nations, subject to later ratifica

tion, a constitution of a world federal

government. The fact that the legis latures of North Carolina, California,

New Jersey, Maine and Connecticut, have done this shows a stirring in the

grass roots of popular demand for whatever limitation of American sov

ereignty is necessary in order to ac

complish a government for world af fairs. We wish it understood that our

committee takes no position with re

gard to the proposal of these five

states, but we think their action is so

significant that mention of it should be included in our report.

F. Summary and Conclusions

The American Bar Association is

vitally interested in the continued de

velopment of international law as a means of settling disputes among na

tions and maintaining world peace. Modern international law is being made constantly by means of treaties, conventions, and other multilateral

agreements designed to eliminate the

frictions and disputes which, in the

past, have tended to lead states into war. It. is highly significant that

many of these treaties, conventions and agreements can trace their origin to resolutions of the United Nations.

The United Nations has recently marked its fourth birthday. Although it is only in its early infancy, solid foundations have been laid and re

markable progress has been achieved.

History reveals that the maintenance of an orderly society within states results from a gradual evolutionary solidification of public opinion and

mores into codes whereby members of the community can live together in

harmony. By the same token mainte nance of an orderly society among and between states results from a

similar process, marked by the grad ual solidification of international mores and customs into codes by which states can live together in peace and harmony.

Continued progress in the develop ment of the law of nations by means




of the instrumentalities of the United Nations must ultimately result in a world where nations and peoples can live together in peace and harmony* The committee is mindful of the fact that this process is slow and pains taking and beset with great diffi culties. However, this must not deter men of good will from continuing their efforts to maintain world peace through the guardianship of the

United Nations and international law.

Respectfully submitted, Charles W. Tillett,

Chairman Katharine D. Agar Ross L. Malone, Jr. Eli E. Nobleman Robert B. Troutman Richard Young Charles S. Rhyne,

Ex officio

APPENDIX A

Draft International Covenant on Human Rights

[As revised by the United Nations Commission on Human Rights at its fifth session at Lake Success from May 9 to June 20, 1949?The Commission is expected to reconvene for. its sixth session early in 1950 to complete its revision of the Draft Covenant.]

Preamble

[Consideration of the Preamble was postponed?the United States proposed that the Preamble read as follows: "The States parties hereto, bearing in mind the general principles proclaimed in the United Nations Charter and in the Universal Declaration of Human Rights, approved by the General

Assembly of the United Nations on 10 December 1948, agree upon the following articles with respect to certain human rights and fundamental freedoms:"]

Article 1

[Consideration of Article 1 was postponed. It provides: "The States

parties hereto declare that they recognize the rights and freedoms set forth in Part II hereof as being among the human rights and fundamental freedoms founded on the general principles of law recognized by civilized nations."]

* Mr. Troutman does not concur

fully in the report. He does not be lieve that the cause of peace will be advanced unless the Covenant on Hu man Rights is limited to those rights which are already recognized and

clearly defined in American law and, furthermore, that this country should not surrender jurisdiction to any in ternational tribunal in connection with the punishment or enforcement of sanctions for the violation of the

rights so declared. . On the proposed Genocide Pact, he believes that the draft as presented is

objectionable for many reasons, both in form and in principle, and that the

United States should not become a

party thereto. Nations and respons ible officials who practice genocide

should be punished. But, as pointed out in the report of the committee, the draft as submitted is a finished docu ment and we must take it or leave it as a whole. If adopted, it commits the United States to enact the neces

sary legislation to give effect to its

provisions and to punish persons guilty of genocide and of the other acts enumerated in the pact. This commitment becomes a binding obli

gation on the United States to punish acts which the committee's report points out are not clear and which

might be in conflict with certain fun damental freedoms of speech. It is inadvisable for the United States to commit itself to an international obli

gation which American lawyers feel is not clearly defined.




Article 2

1. Each State party hereto undertakes to ensure to all individuals within its

jurisdiction the rights defined in this Covenant. Where not already provided by legislative or other measures, each State undertakes, in accordance writh its constitutional processes and in accordance with the provisions of this Covenant, to adopt within a reasonable time such legislative or other measures to give effect to the rights defined in this Covenant.

2. Each State party hereto undertakes to ensure that any person whose

rights or freedoms as herein defined are violated shall have an effective remedy before the competent national tribunals notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 3

[Consideration of Article 3 was postponed for consideration with implemen tation at the next session of the Commission. Article 3 provides : "On receipt of a request to this effect from the Secretary-General of the United Nations

made under the authority of a resolution of the General Assembly, the govern ment of any party to this Covenant shall supply an explanation as to the man ner in which the law of that State gives effect to any of the provisions of this Covenant. "]

Article 4

1. In time of war or other public emergency, threatening the interests of the people, a State may take measures derogating from its obligations under Part II of the Covenant to the extent strictly limited by the exigencies of the situation.

2. No derogation from articles . . . can be made under this provision. 3. Any State party hereto availing itself of this right of derogation shall

inform the Secretary-General of the United Nations fully of the measures

which it has thus enacted and the reasons therefor. It shall also inform him as and when such measures cease to operate and the provisions of Part II of

the Covenant are being fully executed.

Article 5

1. No one shall be deprived of his life. (United States proposed the addition of the word "arbitrarily" at the end of this sentence?the Commission will

undertake to complete this sentence at its next session.) 2. In countries where capital punishment exists, sentence of death may be

imposed only as a penalty for the most serious crimes. 3. No one may be executed save in virtue of the sentence of a competent

court and in accordance with a law in force and not contrary to the principles expressed in the Universal Declaration of Human Rights.

4. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

Article 6

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7

[Consideration of Article 7 was postponed. The views of the World Health

Organization concerning this Article were requested by the Commission. It

provides: "No one shall be subject to any form of physical mutilation or

medical or scientific experimentation against his will."]




Article 8

1. No one shall be held in slavery; slavery and the slave trade shall be pro hibited in all their forms.

2. No one shall be held in servitude. 3. No one shall be required to perform forced or compulsory labour except

pursuant to a sentence to such punishment for a crime by a competent court. 4. For the purposes of this article, the term "forced or compulsory labour"*

shall not include:

(a) any work, not amounting to hard labour, required to be done in the

ordinary course of prison routine by a person undergoing detention imposed by the lawful order of a court;

(b) any service of a military character or, in the case of conscientious ob

jectors, in countries where they are recognized, exacted in virtue of laws requir ing compulsory national service;

(c) any service exacted in cases of emergencies or calamities threatening the life or well-being of the community;

(d) any work or service which forms part of the normal civil obligations.

Article 9

1. No one shall be subjected to arbitrary arrest or detention. 2. No one shall be deprived of his liberty except on such grounds and in

accordance with such procedure as established by law. 3. Any one who is arrested shall be informed promptly of the reasons for his

arrest and of any charges against him. 4. Any one arrested or detained on the charge of having committed a crime

or of preparing to commit a crime shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. Pending trial, release may be conditioned by guarantees to appear for trial.

5. Everyone who is deprived of his liberty by arrest or detention shall be

entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

6. Every person who has been the victim of unlawful arrest or deprivation of liberty shall have an enforceable right to compensation.

Article 10

No one shall be imprisoned merely on the grounds of inability to fulfill a contractual obligation.

Article 11

1. Subject to any general law, adopted for specific reasons of national

security, public safety or health:

(a) everyone has the right to liberty of movement and is free to choose his

residence within the borders of each State;

(b) any one shall be free to leave any country including his own.

2. Any one is free to return to the country of wrhich he is a national.

Article 12

No alien legally admitted to the territory of a State shall be expelled there

from except on such grounds and according to such procedure and safeguards as are provided by law.




Article 13

1. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone is entitled to a fair and public hearing, by an independent and impartial tribunal established by law. Judg ment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national

security, or where the interest of juveniles or incapacitated persons so require. 2. Everyone charged with a penal offence has the right to be presumed

innocent, until proved guilty according to law. In the determination of any criminal charge against him, every one is entitled to the following minimum

guarantees, in full equality:

(a) to be informed promptly of the nature and cause of the accusation

against him; (b) to defend himself in person or through legal assistance which shall

include the right to legal assistance of his own choosing, or if he does not have such, to be informed of his right and, if unobtainable by him, to have

legal assistance assigned; (c) to examine, or have examined, the witnesses against him and to obtain

compulsory attendance of witnesses in his behalf; (d) to have the free assistance of an interpreter if he cannot understand

or speak the language used in court. 3. Everyone who has undergone punishment as a result of an erroneous

conviction of crime shall have an enforceable right to compensation. This

right shall accrue to the heirs of a person executed by virtue of an erroneous sentence.

Article 14

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or inter national law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 15

Everyone has the right to recognition everywhere as a person before the law.

Article 16

1. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his

religion, or belief in teaching, practice, worship and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to

such limitations as are pursuant to law and are reasonable and necessary to

protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 17

[Freedom of speech and the press?the consideration of this article was

postponed since the General Assembly in the fall of 1949 is scheduled to con

sider a separate convention on freedom of information.]

Article 18

Everyone has the right to freedom of peaceful assembly. No restrictions shall be placed on the exercise of this right other than those prescribed by




law and which are necessary to ensure national security, public order, the

protection of health or morals, or the protection of the rights and freedoms of others.

Article 19

1. Everyone has the right to freedom of association with others. 2. This freedom shall be subject only to such limitations as are pursuant

to law and which are necessary for the protection of national security, public order, public safety, health or morals, or the fundamental rights and freedoms of others.

3. National legislation shall neither prejudice, nor be applied in such a manner as to prejudice, the guarantees provided for in the International Con vention on Freedom of Association and Protection of the Bight to Organize, in so far as States parties to that convention are concerned.

Article 20

1. All are equal before the law and shall be accorded equal protection of the law.

2. Everyone shall be accorded all the rights and freedoms defined in this Covenant without discrimination on any ground such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Everyone shall be accorded equal protection against any incitement to

such discrimination.

Article 21

[Propaganda?the consideration of this article was postponed until Article 17 on freedom of speech and the press is considered by the Commission at its

next session.]

Article 22

1. Nothing in this Covenant may be interpreted as implying for any State,

group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms defined herein or at their

limitation to a greater extent than is already provided for in this Covenant. 2. Nothing in this Covenant may be construed as limiting or derogating

from any of the rights and freedoms which may be guaranteed to all under

the laws of any contracting State or any conventions to which it is a party.

Article 23

1. This Covenant shall be open for signature or accession on behalf of any State member of the United Nations or of any non-member State to which an

invitation has been extended by the General Assembly. 2. Ratification of or accession to this Covenant shall be effected by the de

posit of an instrument of ratification or accession with the Secretary-General of the United Nations, and as soon as . . . States have deposited such instru

ments, the Covenant shall come into force between them. As regards any State which ratifies or accedes thereafter, the Covenant shall come into force

on the date of the deposit of its instrument of ratification or accession.

3. The Secretary-General of the United Nations shall inform all members

of the United Nations and other States which have ratified or acceded, of the

deposit of each instrument of ratification or accession.




Article 24

[Federal state?consideration of this article was postponed. The United States proposed that this article read as follows:

"In the case of a federal State, the following provisions shall apply: (a) With respect to any articles of this Covenant which the federal govern

ment regards as "appropriate under its constitutional system, in whole or in

part, for federal action, the obligations of the federal government shall to this

extent, be the same as those of parties which are not federal States; (b) In respect of articles which the federal government regards as appropri

ate under its constitutional system, in whole or in part, for action by the con

stituent states, provinces, or cantons, the federal government shall bring such

provisions, with favourable recommendation, to the notice of the appropriate authorities of the states, provinces or cantons at the earliest possible moment. "]

Article 25

[Extension of the provisions of the Covenant to non-self-governing terri tories?consideration of this article was postponed.]

Article 26

[Amendments to the Covenant?consideration of this article was postponed.]

Article on Implementation

[The consideration of proposals for an article on implementation was post

poned?the United Kingdom and the United States proposed the following article for inclusion in the Covenant for the implementation of the Covenant:

"1. If a State Party to the Covenant considers that another State Party is not giving effect to a provision of the Covenant, it may bring the matter to

the attention of that State. If the matter is not adjusted between them within six months, either State shall have the right to refer it, by notice to the Secre

tary-General of the United Nations and to the other State, to a Human Rights Committee to be established in accordance with the provisions of this article.

2. The Secretary-General of the United Nations shall establish a panel of

persons of high moral character and of suitable ability and qualifications, de

signated by States Parties to the Covenant from among their nationals, to serve on Human Rights Committees in their personal capacity. Each State

Party to the Covenant may designate two persons for periods, of five years. 3. Upon notice being given to the Secretary-General, a Human Rights Com

mittee shall be established of five members selected from the panel, one mem

ber by the State or States referring the matter, one member by the other

States and three by agreement between them. If any place on the Committee

has not been filled within three months, the Secretary-General shall select a

person from the panel to fill it. 4. The Committee shall meet at the Headquarters of the United Nations in

the absence of agreement to the contrary between the parties to the dispute and the Secretary-General, and shall establish its own rules of procedure

provided that:

(a) the States concerned shall have the right to be represented at the hear

ings of the Committee and to make submissions to it orally and in writing* and

(b) the Committee shall hold its hearings and other meetings in closed

session. 5. The Secretary-General of the United Nations shall provide the necessary

services and facilities for the Committee and its members*




6. The Committee may call for relevant information from any State con cerned and such State shall supply the information requested.

7. The Committee may ask the United Nations Commission on Human Rights* to request the International Court of Justice for an advisory opinion on legal questions.

8. The Committee shall within six months of its first meeting report its

findings of fact to the States concerned, and to the Secretary-General for

publication. The record of the Committee shall be deposited with the Secretary-General. 9. Nothing in this Article shall preclude reference of the matter to the

International Court of Justice for decision if the States referred to in

paragraph 1 so agree.""]

APPENDIX

Convention on the Prevention and Punishment of the Crime of Genocide

The Contracting Parties, Having considered the declaration made by the General Assembly of the

United Nations in its resolution 96 (I) dated 11 December 1946 that geno cide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world;

Recognizing that at all periods of history genocide has inflicted great losses on humanity; and

Being convinced that, in order to liberate mankind from such an odious

scourge, international co-operation is required, Hereby agree as hereinafter provided:

Article I

The Contracting Parties confirm that genocide, whether committed in time

of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present convention, genocide means any of the following acts com

mitted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated

to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

* [It will be necessary for the General Assembly to authorize the Commission

on Human Rights to request advisory opinions of the International Court of

Justice in accordance with Article 96 of the Charter of the United Nations.]




(c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Article IV

Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V

The Contracting Parties undertake to enact, in accordance with their re

spective constitutions, the necessary legislation to give effect to the provisions of the present convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III.

Arti?le VI

Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as

may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradi tion in accordance with their laws and treaties in force.

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article X

The present convention of which the Chinese, English, French, Russian and

Spanish texts are equally authentic, shall bear the date of 9 December 1948.*

Article XI

The present convention shall be open until 31 December 1949 for signature on behalf of any member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.

The present convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.




After 1 January 1950 the present convention may be acceded to on behalf of any member of the United Nations and of any non-member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article XII

Any Contracting Party may at any time, by notification addressed to the

Secretary-General of the United Nations, .extend the application of the present convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article XIII

On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proc?s-verbal and

transmit a copy thereof to each member of the United Nations and to each of

the non-member States contemplated in Article XI.

The present convention shall remain in effect for a period of ten years

following the date of deposit of the twentieth instrument of ratification or

accession.

Any ratification or accession effected subsequent to the latter date shall

become effective on the ninetieth day following the deposit of the instrument

of ratification or accession.

Article XIV

The present convention shall remain in effect for a period of ten years as

from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for

such Contracting Parties as have not denounced it at least six months before

the expiration of the current period. Denunciation shall be effected by a written notification addressed to the

Secretary-General of the United Nations.

Article XV

If, as a result of denunciations, the number of parties to the present conven

tion should become less than sixteen, the convention shall cease to be in force

as from the date on which the last of these denunciations shall become effective.

Article XVI

A request for the revision of the present convention may be made at any time by any Contracting Party by means of a notification in writing addressed

to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in

respect of such request. Article XVII

The Secretary-General of the United Nations shall notify all members of

the United Nations and the non-member States contemplated in Article XI

of the following:

(a) Signatures, ratifications and accessions received in accordance with

Article XI;

(b) Notifications received in accordance with Article XII;

(c) The date upon which the present convention comes into force in

accordance with Article XIII;




(d) Denunciations received in accordance with Article XIV;

(e) The abrogation of the convention in accordance with article XV; (f ) Notifications received in accordance with Article XVI.

Article XVIII

The original of the present convention shall be deposited in the archives of the United Nations.

A certified copy of the convention shall be transmitted to each member of

the United Nations and to each of the non-member States contemplated in

Article XI. Article XIX

The present convention shall be registered by the Secretary-General of the

United Nations on the date of its coming into force.



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