Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-26T03:23:09.352Z Has data issue: false hasContentIssue false
  • English
  • Français

Norm Making and Supervision in International Human Rights: Reflections on Institutional Order

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
Theodor Meron*
Affiliation:
New York University School of Law
Get access Rights & Permissions [Opens in a new window]

Extract

One of the characteristic phenomena of contemporary international life is the proliferation of human rights instruments and systems of supervision. In addition to the Charter of the United Nations and comprehensive global conventions such as the International Covenant on Economic, Social and Cultural Rights (Economic Covenant) and the International Covenant on Civil and Political Rights (Political Covenant), instruments have been adopted within the United Nations or the specialized agencies to govern particular aspects of human rights (e.g., racial discrimination, rights of women) and within regional organizations (e.g., the Council of Europe, the Organization of American States) to govern both general and particular aspects of human rights. In the United Nations, the general practice has been for each normative instrument to create its own system of supervision whenever such systems have been established. Typically, each organ of supervision applies only the norms adopted in the specific “founding” instrument, rather than the entire corpus juris of international human rights or even all of the instruments comprising the International Bill of Human Rights, i.e., the Universal Declaration of Human Rights (Universal Declaration), the Economic Covenant, the Political Covenant, and the Optional Protocol to the International Covenant on Civil and Political Rights. This proliferation of normative instruments and systems of supervision, which is similar to the proliferation that has given rise to difficult questions of coordination within and between international organizations in the fields of budget, programming, and administration, has led to overlapping jurisdiction and even to conflicts between the legislative and supervisory competence, or claims of competence, of various international bodies. The object of this article is not to compile or map out all the possible conflict areas or to undertake a detailed analysis of the conflicts, whether real or imaginary. Its more modest purpose is to present a broad panorama of the problems, directions, and policy. These matters merit attention, even though political and institutional reasons may make major reforms impossible for the time being. The questions to be discussed are relevant to three major fields of international law: treaties, human rights, and international organizations. While substantive problems of “legislation” or norm making are closely related to problems of supervision or implementation, normative problems will be focused upon first, and problems of supervision second.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 4 , October 1982 , pp. 754 - 778
Copyright
Copyright © American Society of International Law 1982

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966).

2 Id. at 52.

3 See Human Rights: A Compilation of International Instruments, UN Doc. ST/HR/1/Rev.l (1978) (which lists 50 human rights instruments); Basic Documents on Human Rights (2d ed. I. Brownlie 1981) [hereinafter cited as Brownlie]. These compilations are necessarily selective. By the end of 1981, the International Labour Organisation (ILO) alone had adopted 156 international labor conventions.

4 E.g., the International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (Racial Discrimination Convention) (which established the Committee on the Elimination of Racial Discrimination), discussed in Buergenthal, , Implementing the UN Racial Convention , 12 Tex. Int’l L.J. 187 (1977)Google Scholar; the Political Covenant, supra note 2 (which established the Human Rights Committee), discussed in Robertson, , The Implementation System: International Measures , in The International Bill of Rights: The Covenant on Civil and Political Rights 332 (Henkin, L. ed. 1981)Google Scholar. See generally van Boven, , Human Rights For a at the United Nations. How to Select and to Approach the Most Appropriate Forum. What Procedural Rules Govern? , in International Human Rights: Law and Practice 83 (Tuttle, J. ed. 1978)Google Scholar. See also Franck, & Fairley, , Procedural Due Process in Human Rights Fact-Finding by International Agencies , 74 AJIL 308 (1980)CrossRefGoogle Scholar, for a critique of fact-finding by international agencies in the human rights area.

The trend to establish separate implementation organs for each UN human rights instrument is continuing. The Convention on the Elimination of AH Forms of Discrimination against Women (Discrimination against Women Convention) provides for the establishment of a Committee on the Elimination of Discrimination against Women. GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, Art. 17, UN Doc. A/34/46 (1979). A proposal has been made to establish a new committee to implement the proposed convention against torture. See UN Doc. E/CN.4/1493 (1981). For a discussion of the pros and cons involved in the establishment of such a new supervisory body and for alternative proposals, see Report of the Working Group on a Draft Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. E/CN.4/1982/L.40, at 12-15 (1982). See also text accompanying notes 47-49 infra and note 106 infra.

It may be recalled that Article 9 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Res. 3068, 28 UN GAOR Supp. (No. 30) at 75, UN Doc. A/9030 (1973), reprinted in Brownlie, supra note 3, at 164, provides that reports by states parties be considered by a group appointed by the Chairman of the Commission on Human Rights consisting of three members of the Commission who are also representatives of states parties to this Convention, which avoids establishing a new organ. It is more difficult to follow such a solution where members of a body (e.g., the Human Rights Committee under the Political Covenant) are elected in their personal capacity and not as representatives of states.

5 It is not clear whether this practice is always compelled by the language of the governing instrument or by considerations such as whether the other relevant instruments have been ratified by the state concerned. Compare this trend with the unified system of implementation and supervision followed by the ILO, Wolf, , Human Rights and the International Labour Organisation , in 2 Human Rights in International Law: Legal and Policy Issues (Meron, T. ed. forthcoming)Google Scholar [hereinafter cited as Human Rights in International Law]; Wolf, , Aspects judiciaires de la protection international des droits de l’homme par l’O.I.T. , 4 Rev. Droits de L’Homme 773 (1971)Google Scholar; the incorporation by reference in Art. 15 of the Convention on Human Rights and Fundamental Freedoms (European Convention on Human Rights), 213 UNTS 221, reprinted in Brownlie, supra note 3, at 242, of norms originating in human rights instruments established outside the framework of the Council of Europe, Buergenthal, , International and Regional Human Rights Law and Institutions: Some Examples of Their Interaction , 12 Tex. Int’l L.J. 321, 324-25 (1977)Google Scholar; and the broad principles that may be taken into consideration by the future African Commission on Human and Peoples’ Rights under Arts. 60 and 61, African Charter on Human and Peoples’ Rights, approved July 1981, reprinted in Rev. Int’l Comm’n Jurists, No. 27, Dec. 1981, at 76, 21 ILM 58 (1982). On the case law of the Court of Justice of the European Communities, see note 46 infra. See further discussion in text accompanying and following notes 46- 50 and 102 infra.

It should be observed, however, that fact-finding bodies established by resolutions of international organs invoke “broadly recognized normative standards.” Franck & Fairley, supra note 4, at 308. Thus, the Ad Hoc Working Group of Experts on Human Rights, in Southern Africa of the Commission on Human Rights, when investigating allegations of infringements of trade union rights in South Africa, studied the applicable South African legislation in light of the UN Charter, the documents constituting the International Bill of Human Rights (see text following note 5), a number of relevant ILO conventions and declarations, the Racial Discrimination Convention, the International Convention on the Suppression and Punishment of the Crime of Apartheid, and the Standard Minimum Rules for the Treatment of Prisoners (GA Res. 415, 5 UN GAOR Supp. (No. 20) at 37, UN Doc. A/1775 (1950), ESC Res. 663 CI, 24 UN ESCOR Supp. (No. 1) at 11, UN Doc. E/3048 (1957)), UN Doc. E/CN.4/1486, at 3-5 (1982). These instruments were considered notwithstanding the fact that South Africa is not a party to the relevant conventions. The practice of fact-finding bodies of invoking instruments to which the “defendant” state is not a party has not been based on an articulated distinction between norms that have attained the status of customary international law and other norms. Have such instruments been invoked primarily as the applicable political rules or as the common law of mankind? These questions merit further study.

6 GA Res. 217A, UN Doc. A/810, at 71 (1948).

7 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 59, UN Doc. A/6316 (1966).

8 See, e.g., Sharp, , Program Coordination and the Economic and Social Council , in UN Administration of Economic and Social Programs 102 (Mangone, G. ed. 1966)Google Scholar; Meron, Administrative and Budgetary Coordination by the General Assembly, in id. at 37; Meron, , Budget Approval by the General Assembly of the United Nations: Duty or Discretion? , 42 Brit. Y.B. Int’l L. 91 (1967)Google Scholar.

9 For materials on this subject, see notes 43-45 and 72 infra.

10 International Complaint System, Council of Europe Doc. CAHMP (80) 2 (1980), a Secretariat Information Memorandum prepared by the Directorate of Human Rights for the Ad Hoc Committee on the Multiplication of Complaint Procedures at the International Level of the Council of Europe, is a useful compilation.

11 See Annual Report of the Administrative Committee on Co-ordination for 1973-1974, UN Doc. E/5488, at 51-52 (1974).

The 1973 report of the Ad Hoc Inter-Agency Meeting of Legal Experts on Co-ordination of Legislative Work of Organizations within the UN system suggested that the concept of “legislative work” should be interpreted

in the widest sense as including all international and regional norms and standards designed to be applied by the member States of the various organizations, whether they were in the form of Conventions, Declarations, Recommendations, Resolutions and Regulations such as the International Health Regulations or Codex Alimentarius Standards, or model codes and other guides to national legislative activity.

Report of the Ad Hoc Inter-Agency Meeting of Legal Experts on Co-ordination of Legislative Work of Organizations, UN Doc. Co-ordination/R.1003, at 1 (1973) [hereinafter cited as Coordination Report].

12 See, e.g., Gastil, quoted in Meron, , A Report on the N.Y.U. Conference on Teaching International Protection of Human Rights , 13 N.Y.U. J. Int’l L. & Pol. 881, 905 (1981)Google Scholar [hereinafter cited as Meron Report].

13 For the distinction between classic human rights (civil and political) and social human rights (including economic and cultural), see Ministry of Foreign Affairs of the Netherlands, Human Rights and Foreign Policy 93-94 (1979); Trubek, , Economic, Social and Cultural Rights in the Third World: Human Rights Law and Human Needs Programs , in 1 Human Rights in International Law Google Scholar, supra note 5. The distinction between classic and social human rights should not be equated with that between individual and collective rights. See Humphrey, Political and Related Rights, in id.

14 See, e.g., the Preamble to the Economic Covenant; the Preamble to the Political Covenant.

15 See GA Res. 32/130, 32 UN GAOR Supp. (No. 45) at 150, UN Doc. A/32/45 (1977), discussed in Donnelly, Recent Trends in UN Human Rights Activity: Description and Polemic, 35 Int’l Org. 633 (1981); Comm’n on Human Rights Res. 36 (XXXVII), operative para. 2, UN Doc. E/CN.4/L.1561/Add.4, at 22, 24 (1981). See also Dinstein, quoted in Meron Report, supra note 12, at 891.

16 See generally Alston, , Development and the Rule of Law: Prevention Versus Cure as a Human Rights Strategy , in Development, Human Rights and the rule of Law 31, 47-54 (1981)Google Scholar. See also Trubek, supra note 13, at nn.79-80.

17 See Co-ordination Report, supra note 11, Ann. II, at 3.

18 Ibid. See Jenks, , Human Rights, Social Justice and Peace: The Broader Significance of the I.L.O. Experience , in International Protection of Human Rights 227, 246, 251-52 (Eide, A. & Schou, A. eds. 1968)Google Scholar.

19 Jenks, supra note 18, at 252.

20 Co-ordination Report, supra note 11, Ann. II, at 3.

21 UN Doc. A/CONF.39/27 (1969), UN Doc. A/CONF.39/27/Corr.l (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969) (Art. 30 concerns application of successive treaties relating to the same subject matter; Art. 41 concerns agreements to modify multilateral treaties between certain of the parties only; Art. 58 concerns suspension of the operation of a multilateral treaty by agreement between certain of the parties only; Art. 59 concerns termination or suspension of the operation of a treaty implied by conclusion of a later treaty).

22 Co-ordination Report, supra note 11, Ann. II, at 10.

23 Article 24 reads as follows:

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

24 The text is identical to Art. 24, ibid.

25 See Co-ordination Report, supra note 11, Ann. II, at 7-8.

26 36 Stat. 2277, TS No. 539.

27 Art. 23, Discrimination against Women Convention, supra note 4. This may not always be easy to determine, as is shown by discussion of an earlier version of Article 23. See UN Doc. E/ 5938, at 2 (1977).

28 GA Res. 36/55, UN Doc. A/RES/36/55, Art. 8 (1981).

29 62 Stat. 3485, TIAS No. 1868, 15 UNTS 35; amended by 7 UST 245, TIAS No. 3500, 191 UNTS 143 (1953); 14 UST 1039, TIAS No. 5401, 466 UNTS 323 (1962); 25 UST 3253, TIAS No. 7987 (1972) (ILO Constitution). The constitutions of the specialized agencies are collected in A. Peaslee, International Governmental Organizations: Constitutional Documents (3d rev. ed. 1974).

30 61 Stat. 2495, TIAS No. 1580, 4 UNTS 275; amended by 6 UST 6157, TIAS No. 3469, 575 UNTS 270 (1954); 10 UST 959, TIAS No. 4230, 575 UNTS 252; 22 UST 1699, TIAS No. 7197 (1968); 29 UST 3379, TIAS No. 9016 (1972); 29 UST 3384, TIAS No. 9017 (1976) (UNESCO Constitution).

31 62 Stat. 2679, TIAS No. 1808, 14 UNTS 185; amended by 26 UST 990, TIAS No. 8086 (1967); 28 UST 2088, TIAS No. 8534 (1973) (WHO Constitution).

32 See Agreements Between the United Nations and the Specialized Agencies and the International Atomic Energy Agency, UN Doc. ST/SG/14 (1961). On the activities of the specialized agencies in the field of human rights, see UN Doc. E/CN.4/1193 (1976); UN Doc. E/CN.4/ 1433 (1980).

33 For a proposal to review the various relationship agreements, see UN Doc. E/1981/3, para. 73 (1980).

34 UNESCO Doc. 110/EX/19, para. 67 (1980).

35 Director-General of UNESCO, quoted in UN Doc. A/AC.198/13, para. 20 (1980).

36 See UN Doc. A/35/148 (1980); UNESCO Doc. 110/EX/19, para. 68 (1980).

37 See UN Doc. A/35/362 (1980); UN Doc. A/AC.198/13, paras. 21-22 (1980).

38 See UNESCO Doc. 109/EX/22 (1980); UNESCO Doc. 109/EX/Dec.5.3.2 (1980).

39 Following the adoption of GA Res. 32/197, on Restructuring of the Economic and Social Sectors of the United Nations System, 32 UN GAOR Supp. (No. 45) at 121, UN Doc. A/32/45 (1977), the International Organisations Committee of the Governing Body of the ILO found it necessary to emphasize that the relationship agreement between the ILO and the United Nations recognizes the competence of the ILO, as defined in its Constitution, as an autonomous organization, with its own international personality. ILO Doc. GB.212/IO/1/9, para. 2(a) (1980).

Measures taken by the General Assembly towards formulating a new UN convention on the protection of rights of all migrant workers exemplify the conflicts in the legislative standard-setting context. GA Res. 34/172, 34 UN GAOR Supp. (No. 46) at 188, UN Doc. A/34/46 (1979). In response to that resolution, the ILO emphasized that its constitutional mandate had always included the protection of migrant workers and that “it would be preferable for standard-setting for the protection of migrant workers to continue to be entrusted to the ILO, as the agency with specific constitutional responsibility for this question.” ILO Doc. GB.212/IO/1/8, para. 17 (1980). Many delegations at the General Assembly, however, were of the view that existing instruments had a “sectoral” approach, such as those of the ILO in labor and those of UNESCO in education. These delegations aimed at establishing a new instrument covering the whole range of political, civil, cultural, economic, and social aspects of the rights of migrant workers. See id., para. 19.

On the work of the ILO for the protection of migrant workers, see UN Doc. A/C.3/35/1 (1980); International Labour Conference, Survey of the Reports relating to Conventions Nos. 97 and 143 and Recommendations Nos. 86 and 151 Concerning Migrant Workers (Report III, Part 4B, 66th Sess., 1980); International Labour Office, International Labour Standards 36 (1978). See generally Valticos, , The Role of the ILO: Present Action and Future Perspectives , in Human Rights Thirty Years after the Universal Declaration 212 (Ramcharan, B. ed. 1979)Google Scholar.

Jenks was of the view that “[m]ost of the substantive rights provided for in the Covenant on Economic, Social and Cultural Rights fall, as the procedural provisions of the Covenant recognise, within the competence and specialised experience of one of the specialised agencies.” Jenks, supra note 18, at 247. It was his expectation that fuller implementation of such rights would require the conclusion of further special conventions under the auspices of the appropriate specialized agencies, e.g., the Convention against Discrimination in Education adopted by UNESCO in 1960, 429 UNTS 93, reprinted in Brownlie, supra note 3, at 234. Jenks, supra note 18, at 247. On the basis of Articles 18, 20-22, and 24 of the Economic Covenant, Jenks concluded, with regard to implementation, that the specialized agencies “potentially” are “the executing agencies of the Covenant . . . with a major share of the responsibility for its effective implementation.” Id. at 250. See also Comparative Analysis of the International Covenants on Human Rights and International Labour Conventions and Recommendations, 52 ILO O. Bull. 181 (1969).

40 See Co-ordination Report, supra note 11, Ann. II, at 3. See also Jenks, supra note 18, at 248.

41 The five Protocols to the European Convention on Human Rights are reprinted in Brownlie, supra note 3, at 257-65.

42 See Council of Europe Doc. CAHMP (80) 1, at 5 (1980).

43 Contra, Eissen, , The European Convention on Human Rights and the United Nations Covenant on Civil and Political Rights: Problems of Coexistence , 22 Buffalo L. Rev. 181, 209 (1972)Google Scholar.

44 It should be noted that the Council of Europe is now exploring the possibility of extending the list of rights of the individual, notably rights in the social, economic, and cultural fields, which should be protected by the European Convention on Human Rights or any other appropriate means. See UN Doc. E/CN.4/1450, at 19-20 (1981). The present stage of the work being done on “extension” of human rights is described in Council of Europe Doc. H/ONG (82) 3. It may be observed, in this context, that the European Convention on Human Rights, which essentially covers rights that can be described as civil or political, is endowed with a machinery for judicial control, whereas the European Social Charter, Europ. TS No. 35, reprinted in Brownlie, supra note 3, at 301, which covers essentially economic and social rights, provides only for a supervisory machinery that may lead to adoption of recommendations. See Reply from the Committee of Ministers to Recommendation 838 (1978), Council of Europe Doc. H/Inf. (79) 4, App. Ill, at 21 (1979). See generally Report, of the Committee of Experts on Human Rights to the Committee of Ministers on Problems Arising from the Co-existence of the United Nations Covenants on Human Rights and the European Convention on Human Rights, Council of Europe Doc. H (70) 7 (1970); Council of Europe, Directorate of Human Rights, Proceedings of the Colloquy about the European Convention on Human Rights in relation to other International Instruments for the Protection of Human Rights, Athens, 21-22 SEPTEMBER 1978 (1979) [hereinafter cited as Proc. of the Colloquy].

45 Eissen, supra note 43, at 184. Buergenthal points out that the American Convention on Human Rights contains a longer catalog of human rights than the European Convention. The Inter-American System for the Protection of Human Rights, in 2 Human Rights in International Law, supra note 5. See generally Buergenthal, supra note 5; Tardu, , The Protocol to the United Nations Covenant on Civil and Political Rights and the Inter-American System: A Study of Co-existing Petition Procedures , 70 AJIL 778 (1976)CrossRefGoogle Scholar.

46 The Luxembourg Court has applied not only the norms described in the Treaty of Rome, but also fundamental human rights contained in the general principles of Community law. See Stauder v. Ulm, 1969 ECR 419, 1970 Comm. Mkt. L.R. 112. The Court has also recognized that basic constitutional rights common to the member states of the Communities are part of the general principles of law that it protects. See Nold v. Commission, 1974 ECR 491, [ 1974] 2 Comm. Mkt. L.R. 338. In Rutili v. Minister of the Interior, 1975 ECR 1219, [1976] 1 Comm. Mkt. L.R. 140, the Court of Justice reached the question of the application of the provisions of the European Convention on Human Rights. The Court stated:

[T]hese limitations placed on the powers of Member States in respect of control of aliens are a specific manifestation of the more general principle, enshrined in Articles 8, 9, 10 and 11 of the [European Convention on Human Rights], . . . which provide[s]. . . that no restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted articles other than such as are necessary for the protection of those interests “in a democratic society.”

ECR at 1232, [1976] 1 Comm. Mkt. L.R. at 155.

In Hauer v. Land Rheinland-Pfalz, 1979 ECR 3727, [1980] 3 Comm. Mkt. L.R. 42, which concerned a complaint that regulations promulgated by the Council of the European Communities prohibiting new plantings of vines violated Hauer’s property rights, the Court of Justice referred to human rights treaties on which the member states of the European Communities had collaborated or to which they were parties, and discussed and interpreted Article 1 of Protocol No. 1 to the European Convention on Human Rights. In this further and more specific application to the law of the European Communities of human rights norms established outside of the framework of the European Communities, the Court of Justice stated that it had

also emphasized in [Internationale Handelsgesellschaft, 1970 ECR 1125], and later in . . . Nold . . . , that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community; and that, similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.

ECR at 3744-45, [1980] 3 Comm. Mkt. L.R. at 64. The Court of Justice considered the right to property to be

guaranteed in the Community legal order in accordance with the ideas common to the constitutions of the Member States, which are also reflected in the first Protocol to the European Convention for the Protection of Human Rights.

. . .

[T]he second paragraph of Article 1 of the Protocol provides an important indication in so far as it recognizes the right of a State “to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.” Thus the Protocol accepts in principle the legality of restrictions upon the use of property, whilst at the same time limiting those restrictions to the extent to which they are deemed “necessary” by a State for the protection of the “general interest.”

1979 ECR at 3745-46, [1980] 3 Comra. Mkt. L.R. at 64-65.

The Court of Justice then considered the constitutional rules and practices of the (then) nine member states, and particularly the legislative measures that have given concrete expression to the social function of the right to property, such as restrictions on the use of agricultural or forest land. It concluded that the relevant regulation could not be challenged in principle since it “is a type of restriction which is known and accepted as lawful, in identical or similar forms, in the constitutional structure of all the Member States.” 1979 ECR at 3747, [1980] 3 Comm. Mkt. L.R. at 66.

See generally Lecourt, , Interferences Between the European Convention on Human Rights and the Community Law Concerning the Community and National Judicial Control , in Proc. of the Colloquy, supra note 44 at 81, 92-94 Google Scholar; Stein, E., Hay, P., & Waelbroeck, M., European Community Law and Institutions in Perspective 136-40, 274-302 (1976)Google Scholar; Dowrick, , Overlapping International and European Laws , 31 Int’l & Comp. L.Q. 59, 81-82 (1982)Google Scholar. Regarding the possible accession by the European Community to the European Convention on Human Rights, see Brown, & McBride, , Observations on the Proposed Accession by the European Community to the European Convention on Human Rights , 29 Am. J. Comp. L. 691 (1981)Google Scholar.

47 See UN Doc. E/CN.4/1982/L.40, para. 54 (1982). See also note 4 supra and note 106 infra.

48 UN Doc. E/CN.4/WG.2/WP/6 (1981).

49 Ibid. Article 7 of the Political Covenant spells out the prohibition of torture.

50 See generally U.S. Const, art. II, §2, cl. 2.

51 See GA Res. 33/54, 33 UN GAOR Supp. (No. 45) at 144, UN Doc. A/33/45 (1978); GA Res. 34/25, 34 UN GAOR Supp. (No. 46) at 164, UN Doc. A/34/46 (1979); Comm’n on Human Rights Res. 22 (XXXV), 35 UN ESCOR Supp. (No. 6) at 128, UN Doc. E/1979/36 (1979). For an analysis of existing UN procedures for dealing with communications concerning violations of human rights, see UN Doc. E/CN.4/1317 (1979). Regarding coordination of systems of compliance, see UN Doc. E/CN.4/1193 (1976); UN Doc. E/CN.4/1433 (1980). A useful description of the practical measures of coordination and collaboration between international organizations in the area of human rights is contained in F. Wolf, Building the Law of the World: A Look at the Process (World Association of Lawyers of the World Peace Through Law Center, Washington, D.C., 1976).

52 48 UN ESCOR Supp. (No. 1 A) at 8, UN Doc. E/4832/Add. 1 (1970). Under this resolution, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights was empowered to appoint a working group that would consider communications “which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” Ibid. Consideration of such communications does not depend on whether the concerned state is a party to any of the instruments on human rights. See Restatement of the Foreign Relations Law of the United States (Revised) §702, Reporters’ Note 8 (Tent. Draft No. 3, 1982). See also discussion at note 5 supra.

53 UN Doc. A/34/503, paras. 1-3 (1979).

54 42 UN ESCOR Supp. (No. 1) at 17, UN Doc. E/4393 (1967).

55 See UN Doc. A/34/503, paras. 9-11 (1979). See generally Comm’n on Human Rights Res. 11 (XXXV), 35 UN ESCOR Supp. (No. 6) at 115, UN Doc. E/1979/36 (1979).

56 See UN Doc. A/34/503, para. 12 (1979). For the consideration by the Human Rights Committee of the reports submitted by Chile under Article 40 of the Political Covenant and the question of admissible sources of information, see Robertson, supra note 4, at 347-48.

57 For a similar view, see UN Doc. CCPR/C/SR.78, at 7 (1978) (statement by Uribe Vargas in the Human Rights Committee).

58 Meron Report, supra note 12, at 930 (footnotes omitted).

59 Article 44 reads as follows:

The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

60 See note 65 infra.

61 See Robertson, supra note 4, at 355-56. It has been suggested that unless an international human rights agreement provides or clearly implies the contrary, special remedies under it generally supplement rather than replace the traditional remedies available between states. Restatement, supra note 52, §703, Comment a.

62 Sohn, Human Rights: Their Implementation and Supervision by the United Nations, in 2 Human Rights in International Law, supra note 5.

63 See id.

64 See Buergenthal, supra note 5, at 327-28.

65 Article 5(2)(a) provides that “[t]he [Human Rights] Committee shall not consider any communication from an individual unless it has ascertained that . . . [t]he same matter is not being examined under another procedure of international investigation or settlement.”

66 See Buergenthal, supra note 5, at 328; Sohn, supra note 62.

67 See Rule 90(1)(e) and Rule 90(2) of the Rules of Procedure of the Human Rights Committee, UN Doc. CCPR/C/3/Rev.l (1979). For a discussion of the interpretation of draft Rule 92(2) concerning later review of a determination of inadmissibility, see Report of the Human Rights Committee, 32 UN GAOR Supp. (No. 44) at 12-13, UN Doc. A/32/44 (1977). See generally Robertson, supra note 4, at 364-69.

68 See Report of the Human Rights Committee, 34 UN GAOR Supp. (No. 40) at 124, 126, UN Doc. A/34/40 (1979). For similar rulings, see, e.g., Report of the Human Rights Committee, 35 UN GAOR Supp. (No. 40) at 111, 112-13, 123, UN Doc. A/35/40 (1980).

69 See Report of the Human Rights Committee, 33 UN GAOR Supp. (No. 40) at 100, UN Doc. A/33/40 (1978).

70 See id. at 99-100.

71 Id. at 100.

72 For materials that support this criticism, see L. Sohn & T. Buergenthal, International Protection of Human Rights 845-56 (1973); UN Doc. E/CN.4/1317 (1979). Tardu correctly suggests that the aim of the other procedure of international investigation must be to reach conclusions on specific cases. See 2 M. Tardu, Human Rights: The International Petition System, pt. 1, §1, at 60 (1980). Regarding the examination by the Commission on Human Rights of the case of Jehovah’s Witnesses in Malawi under ECOSOC Res. 1503, see Report of the Commission on Human Rights, 36 UN ESCOR Supp. (No. 3) at 91, UN Doc. E/1980/13 (1980). See also Robertson, supra note 4, at 358.

73 See 1978 Report of the Human Rights Committee, supra note 69, at 100.

74 See UNESCO Doc. 104/EX/Dec.3.3, para. 10 (1978).

75 See UN Doc. CCPR/C/SR.78, at 6 (1978). The Director of the UNESCO Division of Human Rights and Peace stated:

The problem of litispendence raised by Article 5, paragraph 2(a), of the Optional Protocol . . . concerned the procedure provided for in 104 EX/Decision 3.3 only in so far as the latter was regarded as constituting a “procedure of international investigation or settlement” within the meaning of that provision of the Optional Protocol. It was for the Human Rights Committee to decide on that point. In any event, UNESCO was not legally bound to suspend the examination of a communication in accordance with 104 EX/Decision 3.3 on the ground that it was already being examined by the Human Rights Committee.

UNESCO Doc. 107/EX/34, para. 45 (1979).

76 See UN Doc. CCPR/C/SR.78, at 6-8 (1978). Paragraph 14(a)(x) of the UNESCO Decision 104/EX/3.3 procedure provides that communications relating to matters that have been settled by the states concerned in accordance with principles set forth in the Universal Declaration of Human Rights and the Covenants shall not be considered, but does not exclude examination of matters under consideration by another international body. But see the statement by the representative of UNESCO that paragraph 14(a)(x) was designed to avoid conflict with other bodies. UN Doc. CCPR/C/SR.78, at 9 (1978).

77 See 1978 Report of the Human Rights Committee, supra note 69, at 105.

78 See Council of Europe Doc. H/Inf. (79) 4, App. IV, at 27 (1979).

79 See note 5 supra.

80 OAS TS No. 36, reprinted in Brownlie, supra note 3, at 391, 9 ILM 673 (1970).

81 See Buergenthal, The Inter-American System for the Protection of Human Rights, in 2 Human Rights in International Law, supra note 5. For the Regulations of the Inter-American Commission on Human Rights, see Organization of American States, Handbook of Existing Rules Pertaining to Human Rights, OEA/Ser.L/V/II.50, doc.6, at 117 (1980). For an interesting case of a waiver by the applicant government (Costa Rica) not only of the requirement of the prior exhaustion of domestic legal remedies but also of the application of Articles 48-50 of the American Convention on Human Rights, which require the prior exhaustion of procedures before the Inter-American Commission on Human Rights before a case may be referred to the Inter-American Court of Human Rights, see In re Viviana Gallardo, No. G 101/81 (Inter-American Ct. of Human Rights Nov. 13, 1981), reprinted in 20 ILM 1424 (1981), discussed in Buergenthal, , The Inter-American Court of Human Rights , 76 AJIL 231, 239 (1982)Google Scholar.

See also African Charter on Human and Peoples’ Rights, supra note 5. The African Charter provides that the African Commission on Human and Peoples’ Rights may only deal with communications from states concerning a violation of the African Charter if all local remedies are exhausted (Art. 50), but does not provide for matters being dealt with by another international procedure of investigation. However, the African Commission shall not consider communications from states parties that “deal with cases which have been settled by these [sic] States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.” Art. 56(7). These provisions increase the risk of overlap of procedures.

82 See Sohn, supra note 62.

83 See. De Meyer, The International Control Machinery, in Proc. of the Colloquy, supra note 44, at 241, 287. De Meyer suggests that reports that do not constitute a “settlement” of the dispute do not exclude any subsequent recourse to another form of settlement. Id. at 292.

84 See Council of Europe Doc. CAHMP (80) 1, at 6 (1980).

85 See Committee of Ministers Res. (70) 17, reprinted in Eissen, supra note 43, at 204-05; Council of Europe Doc. CAHMP (80) 1, at 6 (1980).

86 See Council of Europe Doc. CAHMP (80) 1, at 6 (1980); De Meyer, supra note 83, at 292.

87 De Meyer, supra note 83, at 293.

88 See Council of Europe Doc. CAHMP (80) 1, at 7 (1980).

89 See De Meyer, supra note 83, at 293-95 (who asserts this is possible).

90 See note 85 supra (as of February 1982, of the six Council of Europe states parties to the Optional Protocol, five had made such a reservation). See Multilateral Treaties Deposited with the Secretary-General, Status as of 31 December 1981, UN Doc. ST/LEG/ SER.E/1, at 131 (1982).

91 Regarding the proposed convention on the rights of the child, see GA Res. 36/57, UN Doc. A/RES/36/57 (1981); Report of the Working Group on a Draft Convention on the Rights of the Child, UN Doc. E/CN.4/1982/L.41 (1982).

92 Regarding the proposed convention against torture and other cruel, inhuman, or degrading treatment or punishment, see GA Res. 36/60, UN Doc. A/RES/36/60 (1981); Report of the Working Group on a Draft Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. E/CN.4/1982/L.40 (1982).

93 See note 44 supra.

94 See Co-ordination Report, supra note 11, Ann. II, at 5-9.

95 Article 8(3) reads as follows:

Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

96 See Co-ordination Report, supra note 11, Ann. II, at 5-9.

97 See, e.g., Weissbrodt, , A New United Nations Mechanism for Encouraging the Ratification of Human Rights Treaties , 76 AJIL 418 (1982)CrossRefGoogle Scholar.

98 An example of the lowering of standards with regard to implementation is found in the Protocol relating to the Status of Refugees (1967), Articles IV and VII, which allows reservations to the settlement of disputes clause. 19 UST 6223, TIAS No. 6577, 606 UNTS 267. The Convention relating to the Status of Refugees (1951), Articles 38 and 42, did not allow such reservations. 189 UNTS 137, reprinted in Brownlie, supra note 3, at 50.

99 See Valticos, & Wolf, , L’Organisation international du Travail et les pays en vote de développement: Techniques d’élaboration et mise en oeuvre de normes universelles , in Pays en voie de Développement et Transformation du Droit International 127, 131 (Société Française pour le Droit International 1974)Google Scholar.

100 To date, approximately 40 international labor conventions have been revised. The purpose of the great majority of the revisions was either to raise the level of protection or to adapt the convention to changed conditions and new developments since its adoption or, frequently, a combination of these two objectives.

In a few cases, the most recent in 1949, the purpose of the revision was to eliminate rigidities or technical difficulties in the detailed provisions of the convention that were preventing its ratification. The conventions in question were mainly maritime conventions: e.g., Nos. 72, 75, and 76 were revised by Nos. 91, 92, and 93, respectively, and the provisions causing difficulty did not involve the substantive level of protection. The only two major nonmaritime examples of revisions of this type are the revision in 1934, by Convention No. 41, and in 1948, by Convention No. 89, of the Night Work (Women) Convention (No. 4) of 1919, and the revision in 1949, by Convention No. 96, of the Fee-Charging Employment Agencies Convention (No. 34) of 1933. In both cases, the revision introduced greater flexibility into provisions that states had found to be unduly strict.

It was largely after this period that the flexibility devices currently used to permit ratification of ILO conventions by countries of differing levels of development were employed and refined, particularly following the entry of newly independent states into the ILO. The revised conventions that have since been adopted have made substantial use of the various flexibility devices, e.g., the social security conventions adopted since 1952, which revised those adopted in the 1920’s and 1930’s, and the comprehensive Minimum Age Convention (No. 138) of 1973, but so also do the new conventions adopted during this period.

In one case, the revision of a convention that has hardly been ratified has been sought for the sole purpose of allowing a larger number of developing countries to ratify it through the introduction of greater flexibility. It is contained in the agenda item of the 1982 session of the International Labour Conference entitled “Revision of the Plantations Convention, 1958,” which would enable ratifying states to limit the scope of the Convention by excluding small-scale agricultural undertakings from its application.

For a description of the flexibility devices, see generally N. Valticos, International Labour Law 51-54 (1979); Valticos & Wolf, supra note 99. See also Wolf, , Une Nouvelle Dimension du contrôle des autorités portuaires sur les navires au port: La Convention concernant les normes minima a observer sur les navires marchands , in Liber Amicorum Adolf F. Schnitzer 513 (Mémoires Publiés par la Faculté de Droit de Genève No. 61, 1979)Google Scholar.

ILO conventions and recommendations through 1981 are collected in International Labour Organisation, International Labour Conventions and Recommendations, 1919-1981 (1982).

The author is grateful to the Office of the Legal Adviser of the ILO for the information contained in this footnote. The responsibility for its accuracy, of course, is the author’s alone.

101 On the machinery for inter-organizational coordination, see Meron, , Status and Independence of the International Civil Servant , 167 Recueil Des Cours 289, 295 (1980 II)Google Scholar. Should, as a recent UNITAR study suggests, an international legal research center be established, it could perform important coordinating functions in human rights “legislation.” See M. ElBaradei, T. Franck, & R. Trachtenberg, The International Law Commission: The Need for a New Direction 30-32 (UNITAR Policy and Efficacy Studies No. 1, 1981), summarized in 76 AJIL 630 (1982).

102 See, e.g., Arts. 60 and 61, African Charter on Human and Peoples’ Rights, supra note 5. See also text accompanying and note 5 supra, and text accompanying notes 46-50 supra.

103 Sohn, supra note 62.

104 UN Doc. CCPR/C/WG(XV)/DR/R. 18/74, at 5 (1982). For an earlier similar decision (1980) concerning a complaint submitted to the Inter-American Commission by “an unrelated third party,” see UN Doc. CCPR/C/DR(XV)/R.2/10, para. 7.2 (1982).

105 See also Tardu, supra note 45, at 793-98.

106 It has thus been proposed that the future Committee against Torture should be composed, so far as possible, of persons who are also members of the UN Human Rights Committee. Report of the Working Group on a Draft Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. E/CN.4/1982/L.40, Ann. II, Art. 17(2) (1982). See also discussion of Art. 9 of the Apartheid Convention, supra note 4.

107 See, e.g., 1977 Report of the Human Rights Committee, supra note 67, at 14-15.

For a view based on the travaux préparatoires of Article 5(2) of the Optional Protocol that the provision allowing the Human Rights Committee to consider a petition if other proceedings have been “unreasonably prolonged” applies not only to Article 5(2)(b) (exhaustion of domestic remedies), but also to Article 5(2)(a) (competition with other international procedures), see id. at 13; M. Tardu, supra note 72, pt. 1, §1, at 67-69.

108 Human Rights and Foreign Policy, supra note 13, at 80.

109 Ibid, (emphasis in original). For a discussion of advantages inherent in double or triple examination and in seeking out the provision most favorable to the individual concerned, see Council of Europe Doc. CAHMP (80) 1, at 3-4 (1980). See generally Golsong, , To which Extent and for which Subject Matters Is it Advisable to Create and Develop Special Judicial Bodies with a Jurisdiction Limited to Certain Regions or to Certain Subject Matters? , 62 Beitrage zum Ausländischen öffentlichen Recht und Völkerrecht 99, 112 (1974)Google Scholar.