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|Tenth session |
DRAFT INTERNATIONAL COVENANTS ON HUMAN RIGHTS
prepared by the Secretary-General
In resolution 833 (IX), paragraph 2 (a), the General Assembly requested the Secretary-General to prepare a concise annotation of the text of the draft international covenants on human rights. The present document has been prepared pursuant to this resolution.
It is divided into ten chapters. Chapter I gives an outline of the history of the draft covenants and Chapter II indicates briefly certain general problems relating to the draft covenants. The preambles, the article on the right of peoples and nations to self-determination and the articles on general provisions, which are either identical or very similar in both draft covenants, are dealt with in Chapters III, IV, and V respectively. Chapters VI and VII cover the articles on civil and political rights and the measures of implementation for such rights. Chapters VIII and IX cover the articles on economic, social and cultural rights and the measures of implementation for such rights. The final clauses, which are common to both draft covenants, are dealt with in Chapter X.
An attempt has been made to present analytical summaries of the debates on all the articles, setting out the main points of substance and important questions of drafting which have been raised. These summaries are condensed and generalized statements and do not necessarily reflect in every detail the views expressed by particular governments. At the end of each summary, relevant documents are listed.
[Table of Contents]
a.i. agenda item
CHR Commission on Human Rights
CSW Commission on the Status of Women
DC Drafting Committee
ESC Economic and Social Council
GA General Assembly
AN OUTLINE OF THE HISTORY OF THE DRAFT COVENANTS
1. In pursuance of Article 68 of the Charter the Economic and Social Council, by resolution 5 (I) of 16 February 1946, established a Commission on Human Rights and instructed it to submit proposals, recommendations and reports regarding, inter alia, an international bill of human rights. By resolution 9 (II) of 21 June 1946 the Council further requested the Commission to submit "suggestions regarding ways and means for the effective implementation of human rights and fundamental freedoms".
2. The Commission held its first session from 27 January to 10 February 1947. It studied a number of draft bills on human rights and proposals on implementation1 and had a general discussion on the form and content of an international bill of human rights.2
3. Upon the request of the Chairman of the Commission, the Economic and Social Council, in resolution 46 (IV) approved the appointment of a drafting committee, consisting of eight members of the Commission, which was to prepare, on the basis of documentation supplied by the Secretariat, a preliminary draft of an international bill of human rights.
4. The Drafting Committee held its first session from 9 to 25 June 1947 and had before it a draft outline of an international bill of human rights submitted by the United Kingdom of Great Britain and Northern Ireland, draft articles of an international bill of human rights submitted by the United States of America as draft articles of an international declaration of human rights submitted by the representative of France.3
5. Concerning the form which the draft of an international bill might take, two views were put forward in the Drafting Committee. One was that the draft, in the first instance, should take the form of a declaration, the other that it should be in the form of a convention. It was agreed, however, by those who favoured the declaration form that it should be accompanied or followed by a convention or conventions on specific groups of rights. It was also agreed by those who favoured the convention form that the General Assembly, in recommending a convention to Member States, might make a declaration wider in content and more general in expression. The Drafting Committee, therefore, decided to attempt to prepare two documents, a working paper in the form of a declaration which would set forth general principles or general standards of human rights; and a working paper in the form of a convention which would define specific rights and the limitations or restrictions in the exercise thereof. The Committee prepared and submitted to the Commission draft articles of an international declaration of human rights and draft articles of an international convention on human rights.4 The Committee also considered the question of implementation and transmitted to the Commission a memorandum on the subject prepared by the Secretariat.5
6. At its second session (2 – 17 December 1947) the Commission on Human Rights decided that the term "international bill of human rights" should be applied to the entire series of documents in preparation, namely, a declaration of human rights, a convention or covenant on human rights and measures of implementation. It established three working groups: one on the declaration, one on the covenant and a third on implementation. On the basis of the reports of the first two working groups6 the Commission drafted a declaration of human rights and a covenant on human rights.7 These drafts, together with the report of the working group on implementation,8 were transmitted to governments for observations, suggestions and proposals.
7. The Drafting Committee, at its second session (3 – 21 May 1948), revised the declaration and the covenant,9 taking into consideration the comments and proposals of governments.10
8. At its third session (24 May – 16 June 1948) the Commission once more redrafted the declaration but did not have time to consider the covenant and the question of implementation. The declaration thus redrafted, together with the draft covenant as prepared by the Drafting Committee and several proposals on implementation, was submitted to the Economic and Social Council;11and was, in turn, transmitted by the Council, in resolution 151 (VII), to the General Assembly.
9. The draft declaration was placed on the agenda of the third session (21 September – 12 December 1948) of the General Assembly and was discussed first in the Third Committee and then in the plenary.12 On 10 December 1948 the General Assembly adopted and proclaimed the Universal Declaration of Human Rights as "a common standard of achievement for all peoples and all nations". At the same time, in resolutions 217 E and B (III), it requested the Council to ask the Commission to prepare, as a matter of priority, a draft covenant on human rights and draft measures of implementation, and to examine further the question of the right of petition. In resolution 191 (VIII) the Council transmitted these two resolutions to the Commission for the action contemplated therein.
10. During its fifth session (9 May – 20 June 1949) the Commission examined the draft covenant, article by article, but did not consider additional articles which were proposed including articles on economic and social rights. It decided to transmit the draft covenant and the additional articles to governments for comments.13 It also requested the Secretary-General to prepare a survey of the activities of United Nations organs and specialized agencies in matters falling within the scope of Articles 22 – 27 of the Universal Declaration.
11. On the question of implementation there were proposals regarding the establishment of an international court of human rights, of ad hoc committees or permanent organs, which would settle disputes arising out of the interpretation or application of the covenant or otherwise supervise the observance of its provisions, and to which either States alone, or individuals and groups, as well as States, might submit petitions or applications. Such proposals, according to one school of thought, would tend to undermine the sovereignty and independence of States, and were in conflict with the whole system of international public law regulating the relations between States. A majority of the Commission, however, was in favour of some system of implementation. There was general agreement that if a system of implementation was established States should have the right to initiate proceedings. Opinion was evenly divided as to whether individuals and groups should have the right of petition. In view of the complexity of the matter, the Commission requested the Secretary-General to prepare a methodical questionnaire on implementation on the basis of the proposals. It decided to transmit all proposals and statements as well as the questionnaire (which was amended by the Commission) to governments for comment.14
12. In the course of its sixth session (27 March – 19 May 1950) the Commission re-examined the draft covenant and formulated measures of implementation, taking into consideration the comments and observations of governments15 and the survey of the activities of United Nations organs and specialized agencies in matters within the scope of articles 22 – 27 of the Universal Declaration.16
13. The Commission first revised the existing articles (first eighteen articles) of the draft covenant which were related "to some of the fundamental rights of the individual and to certain essential civil freedoms". Then it considered the question of implementation. It decided that a permanent body, a human rights committee, should be established, which would receive any complaint by any State party to the covenant that another State party was not giving effect to any provision thereof, and which would offer its good offices to the States concerned with a view to a friendly solution of the matter. The Commission drafted articles on the establishment, composition and competence of the human rights committee.17
14. Next the Commission turned its attention to proposals on economic and social rights. After a general debate it decided that the covenant and measures of implementation that had been drafted should be considered as "the first of a series of covenants and measures", and that it would proceed at its next session to consider "additional covenants and measures dealing with economic, social, cultural, political and other categories of human rights". It also decided to secure the co-operation of specialized agencies in the drafting of articles on economic, social and cultural rights.18
15. Finally, the Commission decided to transmit to the Council for its consideration draft articles on the application of the covenant to federal States and to non-self-governing and trust territories, and it requested the Secretary-General to prepare a report on federal and territorial application clauses.19
16. The Council considered20 the draft covenant at its eleventh session (3 July – 16 August 1950). It had before it a memorandum containing observations on the draft covenant21 and a report on federal and territorial application clauses22 both by the Secretary-General, and a report of UNESCO on regulations concerning economic and social rights.23
17. In resolution 303 C (XI) the Council approved the decision of the Commission to consider "additional covenants and measures dealing with economic, social, cultural, political and other categories of human rights"; and in resolution 303 D (XI) it requested the Secretary-General to consult specialized agencies on matters relating to economic, social and cultural rights. Furthermore, the Council adopted resolution 303 I (XI) by which the General Assembly was requested to make policy decisions regarding:
(a) The general adequacy of the first eighteen articles;
(b) The desirability of including special articles on the application of the covenant to federal States and to non-self-governing and trust territories;
(c) The desirability of including articles on economic, social and cultural rights; and
(d) The adequacy of the articles relating to implementation.
In the same resolution the Council requested Member States to submit their observations on the draft covenant.
18. At its fifth session (19 September – 15 December 1950) the General Assembly studied the questions of policy relating to the draft covenant24 and made the following decisions.
19. With respect to the "general adequacy of the first eighteen articles", the Assembly in resolution 421 B (V), after expressing the opinion that the list of rights in these articles "does not contain certain of the most elementary rights" and that the wording of those articles "should be improved in order to protect more effectively the rights to which they refer", called upon the Council to request the Commission to revise the draft covenant "with a view to the addition in the draft covenant of other rights" and with a view to defining "the rights set forth in the covenant and the limitations thereto with the greatest possible precision".
20. Regarding the federal and territorial application clauses, the Assembly, in resolutions 421 C (V) and 422 (V) respectively, called upon the Council to request the Commission to study a federal State article and to prepare recommendations "which will have as their purpose the securing of the maximum extension of the covenant to the constituent units of federal States and the meeting of the constitutional problems of federal States"; and to include the following article in the covenant:
"The provisions of the present covenant shall extend to or be applicable equally to a signatory metropolitan State and to all the territories, be they non-self-governing, trust or colonial territories, which are being administered or governed by such metropolitan State".
21. On the question of economic, social and cultural rights, the Assembly, in resolution 421 E (V), declared that "the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent" and that "when deprived of economic, social and cultural rights man does not represent the human person whom the Universal Declaration regards as the ideal of the free man"; and decided "to include in the covenant on human rights economic, social and cultural rights and an explicit recognition of equality of man and woman in related rights as set forth in the Charter of the United Nations", and requested the Commission through the Council "to include in the draft covenant a clear expression of economic, social and cultural rights in a manner which relates them to the civic and political freedoms proclaimed by the draft covenant".
22. Finally, the Assembly discussed the question of implementation. In resolution 421 F (V) it called upon the Council to request the Commission "to proceed with the consideration of provisions, to be inserted in the draft covenant or in separate protocols, for the receipt and examination of petitions from individuals and organizations with respect to alleged violations of the covenant", and to take into consideration a number of proposals25 on measures of implementation.
23. In addition to the policy questions on which the Council had requested decisions, the Assembly took up the right of self-determination and, in resolution 421 D (V), called upon the Council to request the Commission "to study ways and means which would ensure the right of peoples and nations to self-determination and to prepare recommendations" thereon.
24. At its twelfth session (20 February – 21 March 1951) the Economic and Social Council considered General Assembly resolutions 421 (V) and 422 (V) on the draft covenant as well as communications from ILO and UNESCO26 concerning co-operation between the Commission and the specialized agencies with regard to economic, social and cultural rights. In resolution 349 (XII) the Council transmitted the Assembly resolutions to the Commission and invited the specialized agencies to participate in the work of the Commission relating to economic, social and cultural rights.
25. The Secretary-General presented to the Commission at its seventh session (16 April – 19 May 1951) a compilation of observations on the draft covenant27 submitted by governments in pursuance of Council resolution 303 I (XI) and Assembly resolution 421 H (V), an analysis of the policy decisions of the Assembly,28 a memorandum on the general adequacy of the first eighteen articles,29 a memorandum on economic, social and cultural rights,30 a memorandum on measures of implementation31 and a memorandum on co-operation between the Commission and the specialized agencies in matters relating to economic, social and cultural rights. 32
26. The Commission devoted itself first to the drafting of articles on economic, social and cultural rights, then to formulating provisions on a system of periodic reports, and finally to reconsidering the provisions of the human rights committee.33 The representatives of ILO, UNESCO and WHO participated in the Commission's deliberations.
27. On the basis of the proposals of governments and suggestions of specialized agencies,34 the Commission drafted fourteen articles on economic, social and cultural rights. It then formulated ten articles on measures of implementation, under which States parties to the covenant would submit periodic reports concerning the progress made in achieving the observance of human rights. Finally, the Commission revised the provisions concerning the human rights committee, but did not consider a proposal concerning a "protocol on petitions from individuals and organizations" and a "proposal relating to the establishment of an office of the United Nations high commissioner for human rights".35
28. The Commission did not decide whether the articles on the human rights committee should be applied to economic, social and cultural rights as well as civil and political rights, nor did it decide whether the articles on the reporting procedure should be applied to civil and political rights as well as economic, social and cultural rights.
29. Although it was generally agreed that economic, social and cultural rights on the one hand, and civil and political rights on the other, were equally important, the opinion was expressed that the former were not justiciable rights and the method of their implementation was therefore different. A proposal was made which would recommend to the Council that the General Assembly be requested to reconsider its decision to include economic, social and cultural rights in the same covenant with civil and political rights.36 This proposal, however, was not adopted.
30. The draft covenant was discussed by the Economic and Social Council at its thirtieth session (30 July – 21 September 1951). The question was raised whether the human rights committee procedure and the periodic reporting procedure, respectively, should be applied to civil and political rights, or economic, social and cultural rights, or both categories of rights. Conscious of the difficulties which might flow from embodying in one covenant two different categories of rights, and at the same time aware of the importance of both, the Council, in resolution 384 (XIII) invited "the General Assembly to reconsider its decision in resolution 421 E (V) to include in one covenant articles on economic, social and cultural rights, together with articles on civil and political rights".
31. The draft covenant was the subject of a long debate at the sixth session (6 November 1951 – 5 February 1952) of the General Assembly.37
32. In resolution 543 (VI) the Assembly decided to request the Economic and Social Council to ask the Commission on Human Rights:
"To draft two covenants on human rights ..., one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two covenants simultaneously and open them at the same time for signature, the two covenants to contain, in order to emphasize the unity of the aim in view and to ensure respect for and observance of human rights, as many similar provisions as possible ..."
It also requested Member States and specialized agencies to submit drafts and memoranda on the form and contents of the proposed covenant on economic, social and cultural rights. Further, in resolution 544 (VI), the Assembly called upon the Council to ask the Commission to revise the draft articles on economic, social and cultural rights and to take into consideration the views of governments, specialized agencies and non-governmental organizations.
33. With respect to the question of implementation, the Assembly in resolution 547 (VI) forwarded to the Commission a number of additional proposals38 as working papers.
34. The question of reservations was brought up in connexion with the draft covenants. In resolution 546 (VI) the Assembly through the Council instructed the Commission to prepare "one or more clauses relating to the admissibility or non-admissibility of reservations and to the effect to be attributed to them". Finally, in resolution 545 (VI) the Assembly decided to include in the covenants an article which should provide that "all peoples shall leave the right to self-determination", and should "stipulate that all States, including those having responsibility for the administration of non-self-governing territories, should promote the realization of that right, in conformity with the purpose and principles of the United Nations, and that States having responsibility for the administration of non-self-governing territories should promote the realization of that right in relation to the peoples of such territories".
35. The Economic and Social Council, in resolution 415 (S-1), transmitted to the Commission the Assembly resolutions on the draft covenants and requested it to prepare two covenants along the lines indicated by the Assembly.
36. The Secretary-General presented to the Commission at its eighth session (14 April – 14 June 1952), a memorandum on the Assembly and Council resolutions concerning the draft covenants,39 a memorandum on the "general adequacy of the first eighteen articles",40 a memorandum on economic, social and cultural rights,41 observations of Member States and specialized agencies on the proposed covenant on economic, social and cultural rights,42 a memorandum on measures of implementation43 and a report on the federal clause.44
37. The Commission started to work on two covenants, one on economic, social and cultural rights and one on civil and political rights.45 First it drafted an article on the right of peoples and nations to self-determination and decided that the article should be article 1 of each covenant. Then it proceeded to revise the articles one economic, social and cultural rights and the articles on civil and political rights, on the basis of previous drafts and taking into consideration the instructions of the Assembly and the Council and the observations of governments and specialized agencies. Eventually, it adopted a preamble and fifteen articles for the covenant on economic, social and cultural rights and a preamble and eighteen articles for the covenant on civil and political rights. A proposal46 was made that the Commission should request the General Assembly, through the Economic and Social Council, to revise its decision in resolution 543 (VI) to prepare two separate covenants. This proposal was not adopted.
38. During this session the Commission was not able to complete the drafting of the covenants and, in particular, to consider questions of implementation, provisions on reservations and a federal State clause. In a draft resolution it requested the authorization of the Council to complete its work on the covenants at its next session in order that they might be submitted simultaneously in 1953.
39. In resolution 440 (XIV) the Economic and Social Council instructed the Commission to complete its work on the covenants at its next session.
40. The Commission devoted the major part of its ninth session (7 April – 30 May 1953) to the consideration of the draft covenants.47 It adopted seven additional articles dealing with civil and political rights. It revised the provisions relating to the establishment, composition and jurisdiction of the human rights committee in connexion with the covenant on civil and political rights, but it did not decide whether such provisions were to be applied to the covenant on economic, social and cultural rights. It did not have time to re-examine the provisions relating to the system of periodic reports in connexion with the covenant on economic, social and cultural rights or with the covenant on civil and political rights. Nor did it reconsider the final clauses, including federal and reservations clauses. A proposal48 which would request the Council to ask the General Assembly to reconsider its decision that two covenants, instead of one, should be drafted was rejected.
41. Noting the progress made in the drafting of the covenants, the Economic and Social Council, in resolution 501 B (XVI), requested the Commission to complete its work at its tenth session in 1954, transmitted the report of the Commission to the General Assembly and invited Member States, specialized agencies and non-governmental organizations to submit observations on the draft covenants.
42. The General Assembly at its eighth session (15 September – 9 December 1953) discussed two questions relating to the draft covenants: the question of a federal clause and the question of the right of petition.49 It did not make any policy decision on either question, but in resolution 737 (VIII) it transmitted draft resolutions on a federal clause50 and on the right of petition51 to the Commission. The Assembly resolution was forwarded to the Commission by the Council in resolution 510 (XVI).
43. It was during its tenth session (23 February – 16 April 1954) that the Commission concluded its work on the draft covenants,52 before it were observations of governments,53 of specialized agencies54 and of non-governmental organizations55 on the draft covenants. Also before it were the Secretary-General's memoranda on civil and political rights,56 on economic, social and cultural rights,57 on measures of implementation,58 on the question of reservations59 and on final clauses.60
44. At its tenth session the Commission proceeded to redraft the articles relating to the system of periodic reports for the implementation of the covenant on economic, social and cultural rights. It adopted an article concerning reports on civil and political rights for the implementation of the covenant on civil and political rights, but it decided not to apply the human rights committee procedure to the covenant on economic, social and cultural rights. It discussed, but did not adopt, provisions on the right of petition of individuals, groups or non-governmental organizations in respect of either civil and political rights or economic, social and cultural rights.
45. The Commission adopted a federal clause stipulating that the provisions of each covenant "shall extend to all parts of federal States without limitations or exceptions". Previously it embodied in each covenant a territorial application clause, adopted by the General Assembly in resolution 422 (V), which stated that the provisions of the covenant "shall extend to and be applicable equally to a signatory metropolitan State and to all the territories, be they non-self-governing, trust or colonial territories, which are being administered or governed by such metropolitan State". The Commission was unable to reach an agreement on the formulation of a clause on reservations, and it decided to request the Council to transmit a number of proposals61 to the General Assembly.
46. The Commission also discussed proposals on the right to own property but it adjourned sine die consideration of the question.
47. The draft covenants, as thus prepared by the Commission, contain the following parts:
Draft covenant on civil and political rights