Volume #17 - 246.|
ECONOMIC AND SOCIAL COUNCIL
THIRTEENTH SESSION, JULY 30-SEPTEMBER 21, 1951
Memorandum from Secretary of State for External Affairs|
CABINET DOCUMENT NO. 60-51|
February 24th, 1951|
DRAFT COVENANT ON HUMAN RIGHTS: CANADIAN STATEMENT TO THE UNITED NATIONS|
A report by an interdepartmental committee which has been examining the Canadian attitude to the draft covenant on human rights being drawn up by the United Nations is submitted herewith. It considers the Canadian position on this project and has attached to it a draft statement which, if approved, will be sent to the Secretary-General of the United Nations. The observations of member governments of the United Nations on the draft covenant have been requested.
It is recommended that Cabinet approve the transmission to the United Nations of the statement, the nature of which is summarized in paragraphs 12 to 15 of the committee's report.
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Rapport du Comite interministeriel
Report of Interdepartmental Committee
RESTRICTED [Ottawa], February 12, 1951
CANADIAN STATEMENT TO THE UNITED NATIONS
The recent session of the General Assembly of the United Nations passed a resolution requesting governments to submit their observations on the draft covenant on human rights by February 15, 1951. The views of governments will be considered by the Commission on Human Rights in revising the draft covenant. When speaking in the Social Committee of the General Assembly on October 19, 1950, the Canadian representative said that Canada would welcome the opportunity which would be given to governments at a later date of submitting in writing their views on the draft covenant. The attached statement, which would be sent to the Secretary-General of the United Nations, if approved, has been drafted for this purpose.
2. On September 12, 1950, Cabinet considered instructions to the Canadian delegation to the General Assembly on the draft covenant and agreed that the Canadian delegation state that the present text was not satisfactory and would require substantial revision before Canada would be in a position to vote for its adoption. This attitude was expressed by our representatives.
3. As a party to the Charter of the United Nations, Canada contracted certain general obligations to promote and encourage respect for human rights and fundamental freedoms. Each State signatory to the Charter has accepted the obligations on human rights which are set forth in the preamble, Articles 1 (3), 13, 55, 56, 62 and 68. The extent of the obligations has never been determined in exact terms. The nature of the commitments made under the Charter is described as follows by Professor Lauterpacht:
"The question of the observance of fundamental human rights has, as the result of the Charter, ceased to be one of exclusive domestic jurisdiction of States and, though not involving a right of direct intervention on the part of the United Nations, has become a matter of legitimate concern to its members and to the Organisation as a whole. Though imperfect from the point of view of enforcement, the relevant provisions of the Charter constitute legal obligations of the members of the United Nations and of the Organisation as a whole. The fundamental human rights and freedoms acknowledged by the Charter must henceforth be regarded as legal rights recognised by International Law. Their enforcement, subject to the limitations of the Charter, must be regarded as a paramount object of the United Nations".
4. When speaking in the Political Committee of the Assembly on November 25, 1946, when the question of the treatment of Indians in South Africa was under discussion, Mr. St. Laurent, as Secretary of State for External Affairs, said:
"It is worthy of note also that Article 1 of the Charter states in clear terms that it is a purpose of the United Nations to promote international co-operation in `promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion'. This is an unqualified obligation which rests upon each Member of the United Nations. The Canadian delegation, in common with all other delegations, regards the promotion of international action in the field of human rights and freedoms as of the utmost importance in the establishment and maintenance of a just and lasting peace."
Mr. St. Laurent in a speech in Montreal on February 24, 1947, said:
"Each Member of the United Nations has, by signing the Charter which contains these declarations on human rights contracted by treaty a solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all, without distinction of race, sex, language or religion. Each national government has, in the name of its people, accepted this obligation knowing the difficulties likely to be encountered in honouring it to the full. The Members of the United Nations have pledged themselves to act together in overcoming these difficulties; they have likewise pledged themselves to act separately. Thus failure by one nation to act provides no excuse for the inaction of others."
Canada voted in favour of the Universal Declaration of Human Rights, a statement of principles, which was adopted by the General Assembly in Paris in December, 1948, though the Canadian vote was accompanied by an explanation reserving the rights of the provinces under the Canadian constitution. In a speech in the Social Committee of the General Assembly on October 19, 1950, when the draft covenant was under discussion, the Canadian representative said:
"The objective of the covenant - the assurance of effective enjoyment of basic fundamental rights and freedoms - is one with which my delegation is wholly in accord."
5. The draft covenant has been in the course of preparation for several years. It has been conceived of as part of an international bill of rights, to consist of a statement of principles or a common standard of achievement for all countries, which has already taken the form of the Universal Declaration of Human Rights, and of a multilateral convention giving rise to legal rights and obligations in the field of human rights. The Commission on Human Rights was given the task of drafting a suitable international treaty. Sooner or later the General Assembly will be asked to vote on this covenant which, if approved, will then be opened for signature and ratification. A decision by Canada to vote against the covenant would likely result in putting ourselves in this matter in a camp consisting largely of the Soviet Union and its satellites. In any event, it would expose Canada to propaganda attacks designed to show how lightly we regard our Charter commitments and what little importance we attach to the promotion of respect for human rights when we are faced with an opportunity to indicate our good intentions in a concrete form.
6. The strength of the movement in favour of international treaties to protect human rights is shown by the fact that fifteen members of the Council of Europe have recently signed a Convention on human rights and fundamental freedoms. Greece and Sweden have already ratified it and the United Kingdom expects to ratify before the end of this month.
7. As the project of a United Nations covenant is now well under way and is likely to be brought to a conclusion, it is considered that it would be wise for Canada to endeavour to influence its form and content so as to make it as unobjectionable as possible to Canada. Any international treaty drawn up under the auspices of the United Nations will inevitably, however, be the result of compromises between the varying legal systems, civilizations and policies of the participating countries. It is, therefore, too much to hope to obtain an instrument which is entirely satisfactory to Canada or any other signatory.
8. The measures of implementation and enforcement under the covenant provide for the creation of a Human Rights Committee of seven members who will be nominated and elected by the states parties to the covenant. The draft provides that they shall be persons of high standing and of recognized experience in the field of human rights and that in their election consideration shall be given to equitable geographical distribution. In the attached statement it is suggested that they should also, like the judges of the International Court of Justice, be representative of the main forms of civilization and of the principal legal systems of the states parties to the covenant.
9. It is conceivable that accession to the Covenant on Human Rights might, at some future date, mean that action contemplated or taken by the Canadian Parliament would be in conflict with our international obligations. Our accession to an international convention would not, however, render any national legislation ultra vires or prevent Parliament from passing legislation at some future date which might be in conflict with our international obligations. These obligations do not, moreover, go further than the principles we recognize in ordinary practice and do not depart from except in emergencies. To cover such cases there are emergency provisions in the proposed covenant. Our freedom of action in the national sphere thus would not be interfered with from a strictly legal point of view, though in fact treaty obligations of this nature, as of many other kinds, may place limitations on internal policies.
10. Our adherence to the covenant might result in increased public pressure for a domestic Bill of Rights, though this is not certain, but the covenant provides an answer to such a demand as it gives the government an opportunity to explain that it has assumed these obligations to protect human rights in an international treaty as a matter of public policy and that this is not inconsistent with its policy in respect to domestic legislation for promoting the observance of human rights. It could be added that while the government relies on the traditional legal methods of protecting human rights in Canada, it considers that the covenant will be helpful internationally in promoting respect for these rights and in psychological warfare against the Soviet world.
11. Considerable public interest has been shown in this project for a multilateral convention on human rights and it is likely that questions may be asked in Parliament on the Canadian Government's attitude towards it. The attached statement has, therefore, been drafted not only to meet the United Nations request, but also to be of use in Parliament should it be required for this purpose.
12. At the outset the statement indicates the constitutional and legal difficulties raised by the draft covenant. On the first eighteen articles of the draft covenant which define the human rights and freedoms with which it is concerned, the view is expressed that the scope or content of the draft text is generally satisfactory, though one or two secondary provisions might be deleted, but that the form or quality of drafting requires substantial revision. A number of examples is given of the drafting changes that appear to be called for.
13. On the proposal to include a federal state clause in the covenant, under which the legal obligations would, in the case of federal states, be limited to those matters coming within federal jurisdiction, it is stated that, in the absence of a satisfactory federal clause, Canada could not become a party to the covenant-The text for a federal clause suggested by India appears satisfactory. The statement also supports the inclusion of a colonial application clause under which a state with dependent territories would be able to adhere to the covenant without automatically and immediately binding these territories.
14. The statement presents some of the arguments against the inclusion of clauses on economic, social and cultural rights in the first covenant.
15. On the measures for implementing or enforcing the covenant, it is contended that it would be wise to limit to states parties to the covenant the right of laying complaints against other states parties to it and that the covenant should not provide for the receipt and examination of petitions from individuals and non-governmental organizations.
16. It is recommended that approval be sought for the transmission to the United Nations of the statement attached.
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Déclaration canadienne sur le Pacte provisoire sur les droits de l'homme
Canadian Statement on Draft Covenant on Human Rights
February [n.d.], 1951
Under the Canadian constitutional and legal system, human rights and freedoms have been protected by judgments of the courts and by specific statutes rather than by general declarations, statements of principles or a bill of rights. Indeed, it would appear that residents of Canada enjoy in fact all the rights set forth in the draft covenant on human rights, apart from the provision for compensation in the event of a miscarriage of justice, dealt with in Article 10 (3). In Canada these rights have been observed and enforced on a rather different basis than in some other countries.
2. The existence of different methods and procedures for defining and protecting human rights has inevitably given rise to some divergence of views on the draft covenant, as expressed by the representatives of various countries in the General Assembly and other organs of the United Nations. It must thus be recognized that there are many difficulties and obstacles to be overcome in reaching a general understanding on an international treaty or agreement dealing with human rights.
3. No useful purpose would be served in bringing before the General Assembly of the United Nations for adoption a revised text of the draft covenant unless it is framed in a way to meet with wide and speedy acceptance by a large and representative group of the nations of the free world. This requires that full recognition be given to the constitutional difficulties of federal states and states with dependent territories. Canada, for its part, could not become a party to the covenant in the absence of a satisfactory federal clause. Furthermore, it is considered that the proposed attempt to include economic and social rights will jeopardize the completion and coming into force of the covenant.
The First Eighteen Articles of the Draft Covenant
4. The content or scope of the first eighteen articles of the present draft text of the covenant appears to be generally satisfactory, in the sense that they cover the essential or fundamental civil rights. It would not appear to be wise to attempt to add at this stage to the basic principles embodied in these articles, as any endeavour to do this might well result in lengthy delays in establishing the text of the covenant and limit substantially the number of states prepared to ratify it.
5. Indeed, it might be advisable to consider the deletion of certain rather more secondary provisions in the first eighteen articles, such as the provision in paragraph 2, sub-section (b) of Article 10 to grant free legal aid, and the provisions in paragraph 6 of Article 6 and paragraph 3 of Article 10, to accord compensation in the case of unlawful arrest or a miscarriage of justice in the courts. Other countries interested in the formulation of the covenant have pointed out that these provisions have extensive administrative and financial implications. It might therefore be advisable not to include them at the present stage.
6. As regards the form or quality of drafting the first eighteen articles, the present draft text requires substantial revision. The articles are very unevenly formed. Some contain very detailed provisions while others are expressed in terms of general principles. The criticisms made of the text by different governments have been of a conflicting nature, as some have wished to have more detailed provisions with lengthy enumerations of exceptions to, or limitations on, the basic rights as defined in the covenant, while other governments have expressed a desire to confine the text to general provisions without spelling out restrictions and exceptions in detail. Since it is necessary for the purpose of a general international convention to find some common ground between the various legal systems in existence in the free world, technical terms and detailed provisions should be eliminated as far as possible, and the definitions of rights in the covenant should be expressed in general terms, while at the same time avoiding ambiguity or vagueness as far as possible.
7. In an annex to this statement some comments are made on a few articles to illustrate the unsatisfactory form of the first eighteen articles.
Federal State Clause
8. The comprehensive resolution of the General Assembly of December 4, 1950, concerning the future work of the Commission on Human Rights contains a reference to the federal state clause and provides that the Commission shall make recommendations for the purpose of securing the maximum extension of the covenant to the constituent units of federal states, and meeting the constitutional problems of federal states. The inclusion of a federal clause recognizing the special position of federal states in the covenant is of the greatest importance to Canada. Indeed, in the absence of a satisfactory federal clause, Canada, because of the nature of its constitution, which distributes legislative powers over the field of human rights between the national parliament and the provincial legislatures, could not become a party to the covenant.
9. Several proposals and texts have been advanced to meet the constitutional difficulties of federal states. Of these the text proposed by India at the Fifth Session of the Commission on Human Rights appears to be the most satisfactory.
"(a) In respect of any articles of the Covenant, the implementation of which is, under the constitution of the federation, wholly or in part within federal jurisdiction, the obligations of the Federal Government shall, to that extent, be the same as those of parties which are not federal states.
(b) In respect of any articles of this Covenant, the implementation of which is under the constitution of the federation, wholly or in part within the jurisdiction of the constituent units (whether described as states, provinces, cantons, autonomous regions, or by any other name), the Federal Government shall bring such provisions with favourable recommendations to the notice of the appropriate authorities of the units."
Colonial Application Clause
10. On December 4, the General Assembly also adopted a separate resolution concerned with the application of the covenant to dependent territories. This not only records a decision against the inclusion of a colonial application clause in the covenant, but presents the text for an article which would require that the provisions of the covenant apply automatically and immediately to all dependent territories of metropolitan states which become parties to the covenant. Many delegations voted in favour of this resolution in the belief that the benefits and rights under the covenant should not be withheld from colonial peoples. The majority decision is, however, regrettable since, if it is maintained, it will undoubtedly make it very difficult, if not impossible for a number of states with non-self-governing territories to become parties to the covenant, even after lengthy delays.
11. Under a colonial application clause, such as Article 12 of the Genocide Convention, the provisions of the covenant would not be automatically binding on overseas territories at the time of ratification, but the state responsible for the international relations of the territories in question would be able at any time by notification to extend the application of the covenant to any or all of these territories. In a social and humanitarian convention of the character of the draft covenant, which concerns many matters of local legislative jurisdiction, a clause should be included to facilitate the adherence of states with dependencies, as these states frequently have constitutional difficulties in applying conventions to their territories and as they attach great importance to respecting the autonomy and measure of self-government enjoyed by colonial governments and legislatures.
Self-determination of Peoples and Nations
12. The principal resolution adopted by the Assembly on December 4 contains a part whereby the Commission is to be requested to study ways and means which would ensure the right of peoples and nations to self-determination, though the resolution does not specifically state that articles for this purpose are to be included in the draft covenant. The principle of self-deternunation, which is recognized in the Charter of the United Nations itself, is of the greatest importance. The right of selfdetermination and independence is, however, not so much a matter of individual human rights and fundamental freedoms as a collective right and is therefore inappropriate for inclusion in the covenant.
Economic Social and Cultural Rights
13. The General Assembly decided to include economic, social and cultural rights in the covenant, and the Commission is to be instructed to make provision for them in the draft covenant. It is to be hoped that the General Assembly will reconsider this decision.
14. The advancement of economic, social and cultural rights is a matter of great importance. The traditional civil liberties cannot be fully exercised in the modern world, unless economic and social rights are also promoted and enjoyed. There is therefore a close relationship between the two categories of rights. Generally speaking, however, economic and social rights cannot be protected and encouraged in the same way as civil and political rights. The latter involve limitations on the powers of governments and legislatures to interfere with the rights of the individual. Economic, social and cultural rights, on the other hand, are not so much individual rights as responsibilities of the state in the field of economic policy and social welfare which usually require for their effective implementation detailed social legislation and the creation of appropriate administrative machinery. There is thus a fundamental difference in the nature of the two categories of rights.
15. An attempt to include economic and social rights in the first covenant will jeopardize, if not make impossible, its completion. It will be extremely difficult to reach any general agreement, at least without lengthy delays, on the formulation of these rights in a way that will give rise to workable and enforceable legal remedies.
Measures of Implementation
16. The resolution of the General Assembly under consideration did not, unfortunately, deal adequately with the part of the draft covenant which concerns the measures of implementation. The resolution is limited to a request that consideration be given to the insertion, in the draft covenant or in separate protocols, of provisions for the receipt and examination of petitions from individuals and organizations with respect to alleged violations of the covenant, in addition to the existing provisions for the laying of complaints by signatory governments.
17. There are certain obvious difficulties to be overcome in giving satisfactory effect to the right of petition from individuals or non-governmental organizations. Some machinery would have to be devised, for example, to eliminate frivolous and irresponsible petitions, many of which might be made without any previous attempt to utilize available and adequate local remedies, or might be submitted for purely propaganda, political, malicious, or abusive purposes. The machinery for determining the receivability and best methods of examining and giving effect to private petitions should be studied carefully before extending the measures of implementation in the covenant beyond the laying of complaints by one state party to the covenant against another state which is also a party. It may be noted that only states can at present be parties in cases before the International Court of Justice. The draft covenant as it now stands would appear to contain adequate provisions on implementation.
18. Complaints between states would, under the draft covenant, be investigated by a Human Rights Committee of seven members who shall be persons of high standing and of recognized experience in the field of human rights. The covenant might usefully provide that the Committee should, like the judges of the International Court, be representative of the main forms of civilization and of the principal legal systems of the states parties to the covenant. Consideration might again be given by the Commission to including paragraphs designed to reduce or avoid overlapping between the activities of the Human Rights Committee and those of other organs of the United Nations, and also to provide for a more effective and closer relationship between the functions of the International Court and the Committee.
Provisions for Amendment
19. A minor modification of the final article of the draft covenant, which deals with the process of amendment, might be desirable. In its present form it gives power to a third plus one of the members of the General Assembly to veto a proposed amendment to the covenant. This group might well be comprised entirely of states not parties to the covenant. In order to avoid such a situation the states parties to the covenant should be given more control over the amendment of the instrument. This could be done by re-drafting the last sentence of paragraph 1 of Article 45 and paragraph 2, to read as follows:
"...Any amendment recommended by a two-thirds majority of the States present and voting shall be transmitted by the Secretary-General to the Members of the United Nations and to other States Parties to the Covenant.
2. Unless the General Assembly within twelve months expresses its disapproval of a proposed amendment by a two-thirds majority of the Members present and voting the amendment shall come into force when ratified in accordance with their respective constitutional processes by two-thirds of the States Parties to the Covenant."
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Annexe à la déclaration canadienne
Annex to Canadian Statement
COMMENTS ON SOME OF THE FIRST EIGHTEEN ARTICLES
1. Paragraph 1 of Article 1 reads as follows: "Each State party hereto undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in this Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."; while Article 17 reads: "All are equal before the law: all shall be accorded equal protection of the law without discrinunation on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." These provisions are expressed in similar language but are apparently intended to convey different meanings. If so, this should be made clear by the use of more precise language in each article.
2. Article 4 of the present draft now reads: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected against his will to medical or scientific experimentation involving risk, where such is not required by his state of physical or mental health." The second sentence suggests, particularly in the final phrase, a dangerous exception which might be abused, although without this exception the sentence might be interpreted to stand in the way of genuine medical progress. The first sentence of the Article appears to cover adequately the subject of prohibition of torture or cruel punishment. The second sentence should therefore be deleted. With this change the article would be similar to Article 3 of the Convention for the Protection of Human Rights drawn up by the Council of Europe.
3. Article 8 reads:
"1. Subject to any general law, consistent with the rights recognized in this
(a) Everyone legally within the territory of a State shall, within that territory, have the right to (1) liberty of movement and (2) freedom to choose his residence;
(b) Everyone shall be free to leave any country including his own.
2. (a) No one shall be subjected to arbitrary exile.
(b) Subject to the preceding sub-paragraph anyone shall be free to enter the country of which he is a national."
This constitutes a satisfactory definition of freedom of movement, but it is introduced by the vague phrase "Subject to any general law, consistent with the rights recognized in this Covenant". While such a proviso is necessary, it should be more precisely formulated as the phrase has already given rise to different interpretations.
4. Articles 13, 14, 15 and 16 contain formulas providing for limitations on freedom of thought, religion and expression and the rights of assembly and association defined therein, but the formula employed is not uniform and in the interests of good drafting and ease of interpretation, the limitation clause should be expressed in the same way in the four articles, except where a difference in substance is intended. Furthermore, the rights defined in Articles 15 and 16 are expressed in a less direct way than the rights in Articles 13 and 14. It would be better if the form of the first two were followed throughout. The comparable articles in the Council of Europe Convention, namely 9, 10, and 11, appear in some respects to be better drafted and might serve as models for the revision work of the Commission on Human Rights.
5. Several phrases are used in various articles which may be given different meanings under different legal systems or when expressed in different languages. These include the terms, in the English text, "self-defence" in paragraph 2 of Article 3, "arbitrary arrest" in paragraph 1 of Article 6, and "order" or "public order" in Articles 13, 14, 15 and 16. These expressions should be avoided, and the concepts involved stated in other terminology.38
38 Approuvé par le Cabinet, le 14 mars 1951./Approved by Cabinet, March 14, 1951.