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How American International Lawyers Prepared for the San Francisco Bill of Rights

Published online by Cambridge University Press:  27 February 2017

Louis B. Sohn
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Extract

Too much has been written lately about the limited approach to human rights at Dumbarton Oaks, the struggle at the San Francisco Conference, and the great flowering of declarations, conventions, covenants and instruments to implement them in the last fifty years. Instead of adding another retelling of these more than twice-told tales, this essay tries to look at the origin of two less known contributions to the law of human rights—the broad nondiscrimination clause which added a more practical meaning to the vague “human rights and fundamental freedoms” phrase; and the bold addition of economic and social rights to the more traditional civil and political rights.

Type
The United Nations at Fifty
Information
American Journal of International Law , Volume 89 , Issue 3 , July 1995 , pp. 540 - 553
Copyright
Copyright © American Society of International Law 1995

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References

1 La Réforme agraire en Romanie et les optants hongrois de la Transylvanie devant la Sociéte des Nations (Alejandro Alvarez, Yves de la Brière et al. eds., 2 vols., 1927–28); and La Réforme agraire en Transylvanie devant la justice internationale et le Conseil de la Société des Nations: Autres Opinions (1928); The Hungaro-Rumanian Dispute: The Optants’ Case before the League of Nations (Blanche E. C. Dugdale & Muriel Currey eds., 2 vols., 1928–29). See also Caius Jean Dobrin, Les Optants Hongrois et la Réforme agraire roumaine (1929); Denys Peter Myers, Handbook of the League of Nations 310–12 (1935).

2 The Public Papers and Addresses of Franklin D. Roosevelt, 1940, at 663, 672 (1941). The role of President Roosevelt in broadening the concept of human rights is discussed in more detail in Louis B. Sohn, The Human Rights Movement: From Roosevelt’s Four Freedoms to Interdependence of Peace, Development and Human Rights (Edward A. Smith Lecture, Harvard Law School, 1995).

3 See text at and note 28 infra.

4 The quotation is from Philip Marshall Brown, The New York Session of the Institut de Droit International, 24 AJIL 126, 127 (1930). As the document was adopted on October 12, 1929, the 437th anniversary of Columbus’s landing in America, Brown also considered it as an homage “to the New World for its contribution to the liberal development of international law.” He described the declaration as of “unique significance” and “revolutionary,” stating that, while it is “open to criticism in terminology and to the objection that it has no juridical value, [it] cannot fail … to exert an influence on the evolution of international law.” He added that this document “marks a new era which is more concerned with the interests and rights of sovereign individuals than with the rights of sovereign states.” Id. (Brown was at that time an Honorary Vice-President of the Society.)

5 George A. Finch, The International Rights of Man, 35 AJIL 662 (1941).

6 The American Institute of International Law, established in 1915, was really an “inter-American” institute, as it was composed of delegates from the societies of international law that were then established in every American Republic, 21 in all. See James Brown Scott, The American Institute of International Law, 10 AJIL 121 (1916) [hereinafter American Institute]. According to Elihu Root, the Honorary President of the institute, its purpose was to express the special views of the American Republics upon international questions, to press for the development of particular principles of international importance to American Republics, and to provide a forum for learning the views of experts from other countries about current issues. Elihu Root, The Declaration on the Rights and Duties of Nations Adopted by the American Institute of International Law, id. at 211, 212. Both the note by Scott and the speech by Root contain the text of the declaration, id. at 124–26 (preamble and six articles) and 212–13 (articles only). Root’s speech contains detailed comments on the declaration, id. at 213–21. The text reappears again in the presidential address by James Brown Scott in 1939, The American Conception of International Law, 33 ASIL Proc. 1, 8 (1939). Scott also mentions there the Declaration of the International Rights of Man of 1929. Id. at 9. A French translation of the inter-American articles is printed in 1921 Annuaire de l’Institut de Droit International 208 [hereinafter Annuaire].

7 Union Juridique Internationale, Déclaration des Droits et Devoirs des Nations, reprinted in 1921 Annuaire, supra note 6, at 209.

8 1921 Annuaire, supra note 6, at 204.

9 Scott, American Institute, supra note 6, at 124–25.

10 Id. at 125.

11 1921 Annuaire, supra note 6, at 205.

12 Id. at 208. The translations from the Annuaire are by the author, except for the final text of the declaration, text at note 28 infra, which is taken from the Journal.

13 See text following notes 10 & 11 supra.

14 1921 Annuaire, supra note 6, at 206–07.

15 Statement by M. Niemeyer, id. at 215.

16 Id. at 218–24. James Brown Scott in his report on the Rome session of the Institut barely mentions de Lapradelle’s report, and there is no mention of the interesting discussion summarized above. See The Institute of International Law, 16 AJIL 243, 247 (1922).

17 1925 Annuaire 246–380 (report), 380–92 (draft convention).

18 Id. at 538. A report by de Lapradelle on the declaration, presented at the same time, id. at 238, was first postponed to 1926, and in 1926 was referred to a commission to prepare a final draft; but no further action seems to have been taken. See André Mandelstam, La Déclaration des droits internationaux de l’homme, 5 Revue de Droit International 59, 60 n.1 (1930).

19 1928 Annuaire 291–92, 296–311.

20 Id. at 371–73.

21 Id. at 388–99. This volume also contains interesting written comments by the members of the commission, id. at 312–45.

22 [1929] 1 Annuaire 730–32. See, in particular, Articles I and II.

23 For a summary of the League debate, see 1925 Annuaire 276–84.

24 [1929] 2 Annuaire 110–12.

25 Id. at 113.

26 Id. at 113–14.

27 Id. at 137.

28 Id. at 298–300. A paragraph at the end of the preamble relating to treaties, though adopted by the Institut (id. at 133), is missing from the French text. Interestingly, Scott reproduced only a few articles of the French text in an editorial in the Journal, Nationality, 24 AJIL 556, 560 (1930). The English translation is taken from a later article by ASIL Secretary George Finch, supra note 5, at 663–64.

For comments on the declaration, see Mandelstam, supra note 18; James Brown Scott, La Déclaration internationale des droits de l’homme, 5 Revue de Droit International 79 (1930); A. Mandelstam, La Généralisation de la protection intemationale des droits de l’homme, 11 Revue de Droit International et de Législation Comparée (3d ser.) 698 (1930); A. Mandelstam, La Protection internationale des droits de l’homme, 38 Recueil des Cours 125 (1931 IV).

29 See supra note 28.

30 The report was widely distributed in pamphlet form. It was published with a short commentary in Annals Am. Acad. Pol. & Soc. Sci., No. 243, Jan. 1946, at 18. This issue was edited by William Draper Lewis, Chairman of the Committee on Essential Human Rights, American Law Institute, and John R. Ellington, member of that committee. It contains, in addition to the Statement of Essential Human Rights, a number of articles on human rights.

31 19 A.L.I. Proc. 48 (1942).

32 Id. at 48–50.

33 Id. at 50–51.

34 Id. at 52–53. Coudert ascribed the report erroneously to the eminent Greek (and French) professor, Nicolas Politis, rather than to the Russian (and French) Professor Mandelstam.

35 20 A.L.I. Proc. 34–36 (1943). “Social rights” were explained later as meaning “those that relate to the individual’s economic opportunity and security.” Id. at 186.

36 Id. at 184.

37 Id. at 184–86.

38 In addition to several American experts, including Manley O. Hudson (who kept me informed about the progress of the committee, and asked me to prepare memoranda on subjects to be discussed), the group included experts from Canada, China, France, pre-Nazi Germany, India, Italy, Panama, Poland, the Soviet Union, Spain, Syria and the United Kingdom. See Annals, supra note 30, at 18.

39 20 A.L.I. Proc. 187–89.

40 Id. at 198–204.

41 Those who would like to read a summary of this thoughtful debate, by members of the institute and foreign advisers, may find it in id. at 204–51.

42 21 A.L.I. Proc. 32–34 (1944).

43 With respect to the source of the text, see supra note 30. The commentaries accompanying each article are omitted here.

44 American & Canadian Bar Associations, International Law of the Future: Postulates, Principles and Proposals (Jan. 1, 1944), reprinted in 38 AJIL 41 (Supp. 1944).

45 See, e.g., Commission to Study the Organization of Peace [CSOP], International Safeguard of Human Rights (1944), reprinted in Building Peace: Reports of the Commission to Study the Organization of Peace, 1939–1972, at 169 (1973); and CSOP, Draft International Bill of Human Rights (1947), reprinted in id. at 888.