No CrossRef data available.
Article contents
Reform of Lawmaking in the United Nations: The Human Rights Instance
Published online by Cambridge University Press: 27 February 2017
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Editorial Comments
- Information
- Copyright
- Copyright © American Society of International Law 1985
References
1 Schachter, , The Nature and Process of Legal Development in International Society, in The Structure and Process Of International Law 745 (Macdonald, R. & Johnston, D. eds. 1983)Google Scholar; Sohn, , The Shaping of International Law, 8 Ga. J. Int’l & Comp. L. 1 (1978)Google Scholar; Suy, , Innovations in International Law-Making Processes, in The International Law and Policy of Human Welfare 187 (Macdonald, R., Johnston, D. & Morris, G. eds. 1978)Google Scholar; Szasz, , Improving the International Legislative Process, 9 Ga. J. Int’l & Comp. L. 519 (1979)Google Scholar; El Baradei, M., Franck, T. & Trachtenberg, R., The International Law Commission: The Need for a New Direction (UNITAR Policy and Efficacy Studies No. 1, 1981)Google Scholar, summarized in 76 AJIL 630 (1982); Review of the Multilateral Treaty-Making Process, UN Doc. ST/LEG/SER.B/21 (prov. ed. 1982) [hereinafter cited as Review]; Alston, , Conjuring up New Human Rights: A Proposal for Quality Control, 78 AJIL 607 (1984)Google Scholar; Ramcharan, , Standard-Setting: Future Perspectives, in Human Rights: Thirty Years after the Universal Declaration 93 (Ramcharan, B. ed. 1979)Google Scholar; Meron, , Norm Making and Supervision in International Human Rights: Reflections on Institutional Order, 76 AJIL 754 (1982)CrossRefGoogle Scholar. On codification of international law in general, see Rosenne, , Codification of International Law, in Encyclopedia of Public International Law 34 (Instalment 7, Bernhardt, R. ed. 1984)Google Scholar, and bibliography, id. at 41.
2 See, e.g., Cassese, , The Self-Determination of Peoples, in The International Bill of Rights: The Covenant on Civil and Political Rights 92, 103-05 (Henkin, L. ed. 1981)Google Scholar; Ramcharan, Equality and Nondiscrimination, in id. at 246, 251, 256-57.
3 Meron, , The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, 79 AJIL 283 (1985)Google Scholar.
4 Convention on the Elimination of all Forms of Discrimination Against Women, Message from the President of the United States Transmitting The Convention on the Elimination of all Forms of Discrimination Against Women, Adopted by the United Nations General Assembly on December 18, 1979, and Signed on Behalf of the United States of America on July 17, 1980, S. Exec. R, 96th Cong., 2d Sess. (1980).
In addition to many substantive difficulties, there is a serious inconsistency between the duty of the Committee on the Elimination of Discrimination Against Women, under Article 21, to examine the reports submitted by states parties under Article 18, and the language of Article 20, which states that “[t]he Committee shall normally meet for a period of not more than two weeks annually in order to consider the reports submitted in accordance with article 18 of the present Convention.” Since by January 1985, 65 states were parties to the Convention and the Committee has been considering six reports in every one of its sessions, one member of the Committee has observed that, at this pace, “the discussion of all reports would be completed by the year 2000.” UN Doc. CEDAW/C/1985/L.1, para. 29.
5 See Meron, supra note 1, at 756-64.
6 1 Review, supra note 1, at 12.
7 Verbatim text of remarks by Jerome J. Shestack (Nov. 13, 1980), summarized in UN Doc. A/C.3/35/SR.56, at 12-14 (1980).
8 1 Review, supra note 1, at 43.
Scholars have complained about the high degree of abstraction and generality in which international human rights instruments have been drafted and which makes their application in specific cases difficult. Lillich, , Civil Rights, in 1 Human Rights In International Law: Legal and Policy Issues 115, 121 (Meron, T. ed. 1984)Google Scholar; Greenberg, , Race, Sex, and Religious Discrimination in International Law, in 2 id. at 307, 318, 330 Google Scholar.
Abstraction helps, however, in many cases to attain the necessary consensus. In national laws and constitutions, highly abstract provisions are clarified through practice and jurisprudence. In international human rights, the process of creating interpretative jurisprudence is slow in time and incomprehensive in scope. This makes good drafting essential.
9 See generally Renninger, J., ECOSOC: Options for Reform 4 (UNITAR Policy and Efficacy Studies No. 4, 1981)Google Scholar.
10 Sohn, L. & Buergenthal, T., International Protection of Human Rights 739-40 (1973)Google Scholar.
11 United Nations Action in the Field Of Human Rights, UN Doc. ST/HR/2/ Rev.1, at 273(1980).
12 L. Sohn & T. Buergenthal, supra note 10, at 740.
13 United Nations Action, supra note 11, at 274 n.14. For an example of such a resolution, see GA Res. 37/180, 37 UN GAOR Supp. (No. 51) at 202, UN Doc. A/37/51 (1982).
14 L. Sohn & T. Buergenthal, supra note 10, at 740.
15 Id. at 744.
16 United Nations Action, supra note 11, at 276. On the Sub-Commission, see generally Haver, , The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, 21 Colum. J. Transnat’l L. 103 (1982)Google Scholar; Humphrey, , The United Nations Sub- Commission on the Prevention of Discrimination and the Protection of Minorities, 62 AJIL 869 (1968)Google Scholar.
17 See, e.g., UN Doc. E/CN.4/1984/47 and Adds. 1-7; UN Doc. E/CN.4/1985/SR.37, para. 3.
18 Tolley, , Decision-Making at the United Nations Commission on Human Rights, 1979-82, 5 Hum. Rts. Q. 27, 43 (1983)Google Scholar.
19 For a discussion of the several historical stages in the work of the Commission, see Schwelb, & Alston, , The Principal Institutions and Other Bodies Founded under the Charter, in 1 The International Dimensions of Human Rights 231, 250-51 (Vasak, K. ed., Alston, P. Eng. ed. 1982)Google Scholar.
20 Meron, supra note 1, at 771-72. 21 UN Doc. E/CN.4/1984/71.
22 UN Doc. E/CN.4/Sub.2/1984/2, at 4.
23 Id. at 3.
24 UN Doc. E/CN.4/Sub.2/1984/1/Add.l. See also Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirty-seventh Session, UN Doc. E/CN.4/1985/3, E/CN.4/Sub.2/1984/43 (1984).
25 UN Doc. E/CN.4/1985/3, E/CN.4/Sub.2/1984/43, at 23-25. See also UN Docs. E/CN.4/Sub.2/1984/2 and E/CN.4/Sub.2/1984/3.
26 UN Doc. E/CN.4/Sub.2/1984/2, at 3-4. See also Garber, & O’Connor, , The 1984 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 79 AJIL 168, 178 (1985)Google Scholar.
27 Verbatim text (Aug. 8, 1984), summarized in UN Doc. E/CN.4/Sub.2/1984/SR.5, at 7.
28 1978 Digest of United States Practice in International Law 439 (1980).
29 Biographical data of representatives to the Commission are available in the Office of Secretariat Services for Economic and Social Matters of the UN Secretariat but are not circulated as UN documents. UN Doc. E/1983/5.
Referring to some distinguished members of the Commission in its early years, Tolley has observed that “[t]he calibre and effectiveness of Commission members vary not only among delegations but also over time.” Supra note 18, at 34.
30 For biographical data of candidates nominated by governments and submitted by them, see UN Doc. E/CN.4/1984/47 and Adds. 1-7.
31 See, e.g., UN Docs. E/CN.4/Sub.2/1984/2, at 3, and E/CN.4/Sub.2/1984/3, at 3. The Chairman of the Sub-Commission acknowledged the relevance of the issue of the independence of the members of the Sub-Commission:
One must be careful to stress that independence, since there was no escaping the fact that members were nominated by Governments and were exposed, as were the members of the Commission to many different pressures, not only from their own Governments but from others and from non-governmental and other organizations.
UN Doc. E/CN.4/1985/SR.37, para. 3. Austria called for the strengthening of the expert character of the Sub-Commission and “the depoliticization of its work.” UN Doc. E/CN.4/ 1985/SR.35. In Res. 1985/28, on the “Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirty-seventh session,” the Commission stressed that states should “nominate as members and alternates persons meeting the criteria of independent experts, not subject to Government instructions in the performance of their functions as members of the Sub-Commission.” UN Doc. E/CN.4/1985/L.11/Add.2, at 20, para. 4. See also Garber & O’Connor, supra note 26, at 178-79.
32 GA Res. 34/180, 34 GAOR Supp. (No. 46) at 193, UN Doc. A/34/46 (1979).
33 United Nations Action, supra note 11, at 96-98, 278; L. Sohn & T. Buergenthal, supra note 10, at 526.
34 See UN Docs. A/C.3/38/WG.1/CRP.2/Rev.l (1983); A/C.3/38/1 (1983); A/C.3/ 38/5 (1983); A/C.3/39/1 (1984); A/C.3/39/4 (1984).
35 See Meron, supra note 1, at 760 & n.39.
36 GA Res. 37/169, 37 UN GAOR Supp. (No. 51) at 196, UN Doc. A/37/51 (1982); GA Res. 38/87, UN Doc. A/RES/38/87 (1983); UN Doc. A/C.3/39/9 and Corr.l (1984).
37 See 1 Review, supra note 1, at 112 (remarks by Austria).
38 See generally Meron, supra note 1.
39 Suy, supra note 1, at 196.
40 2 Review, supra note 1, at 137.
41 For the committee’s initial mandate, see GA Res. 1348, 13 UN GAOR Supp. (No. 18) at 5, UN Doc. A/4090 (1958).
42 1 Review, supra note 1, at 12.
43 For UNCITRAL’s initial mandate, see GA Res. 2205, 21 UN GAOR Supp. (No. 16) at 99, UN Doc. A/6316 (1966).
44 2 Review, supra note 1, at 227.
45 Id. at 224-32; 1 id. at 11.
46 2 id. at 173-223. For the Statute of the ILC, see UN Doc. A/CN.4/4/Rev.2 (1982). The initial terms of reference of the ILC are contained in GA Res. 174 (II), UN Doc. A/ 519, at 105 (1947). They have been amended on several occasions by other resolutions. The amended terms of reference are contained in United Nations, The Work of The International Law Commission 103 (3d ed. 1980).
47 1 Review, supra note 1, at 3.
48 2 id. at 202.
49 Id. at 205-10.
50 This is not to suggest that the work of the ILC has been above criticism. For a recent critical appraisal of its work and role, see M. EL Baradei, T. Franck & R. Trachtenberg, supra note 1.
51 Id. at 22.
52 See generally 2 Review, supra note 1, at 237-40; 1 id. at 14-15. On lawmaking in the ILO, see also ILO Doc. GB.228/4/2 (1984); International Labour Office, International Labour Standards (1984).
Outside the United Nations, the specialized agencies and regional organizations, the lawmaking techniques employed by the International Committee of the Red Cross (ICRC) in the preparation of draft Geneva conventions and protocols for the protection of victims of war are of interest. They are characterized by the consultation of private experts followed, when the results warrant, by the consultation of governmental experts. Drafts prepared by the ICRC are revised in meetings with governmental experts and eventually submitted for approval to a diplomatic conference convened by the Swiss Government, as the depositary of the four Geneva Conventions of 12 August 1949 for the Protection of Victims of War. 2 Review, supra note 1, at 364-83. The ICRC has published comprehensive commentaries on each of these Conventions but not, so far, on the two Protocols Additional to the Geneva Conventions of 12 August 1949, which were opened for signature on Dec. 12, 1977.
53 International Labour Organisation Const, arts. 19-23; see pt. II, sec. E (Convention and Recommendation Procedure) of the Standing Orders of the International Labour Conference, International Labour Office [hereinafter cited as ILO], Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference 13-17, 48 (1982); see also Convention (No. 144) concerning Tripartite Consultations to Promote the Implementation of International Labour Standards, in ILO, International Labour Conventions and Recommendations 1919–1981, at 198(1982).
54 1 Review, supra note 1, at 84. An important example of such a committee is the Committee of Experts for the Extension of the Rights Embodied in the European Convention on Human Rights.
55 Council of Europe Doc. H (83) 3 (1983). On extension of rights in the Council of Europe in general, see also Council of Europe Doc. H/ONG (82) 3; Parliamentary Assembly of the Council of Europe, Recommendation 838 (1978), on widening the scope of the European Convention on Human Rights; Parliamentary Assembly of the Council of Europe, Recommendation 839 (1978), on the revision of the European Social Charter; Reply from the Committee of Ministers to Recommendation No. 838 (1978), Council of Europe Doc. H./Inf.(79)4, App.III, at 21 (1979); 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).
56 Council of Europe Doc. H (84) 5 (1984).
57 Protocol No. 8 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Mar. 19, 1985 (Council of Europe prov. ed.), is aimed mainly at avoiding delays in proceedings under the European Convention.
58 See UN Doc. A/39/535 (1984); Meron, , Towards a Humanitarian Declaration on Internal Strife, 78 AJIL 859, 865 n.37 (1984)Google Scholar.
59 Alston, supra note 1, at 617-21.
60 UN Doc. A/37/444, at 6 (1982) (comments by Australia).
61 Schachter, supra note 1, at 786.
62 See 1 Review, supra note 1, at 19.
Regarding the legal value of declarations, see Schachter, supra note 1, at 787-95, and bibliography, id. at 804 n.97; Schachter, , The Crisis of Legitimation in the United Nations, 50 Nordisk Tidsskrift for International Ret 3 (1981)Google Scholar.
In the ILO and in UNESCO, a decision as to the form of an instrument is required at early stages of the lawmaking process. In United Nations human rights lawmaking, there is no structured rational process for making an informed choice between a declaration and a convention. In a number of cases, a declaration has preceded the adoption of a convention on the subject. The advantages involved in beginning with a declaration are several. A declaration enables the provision of a faster remedy for, or amelioration of, the underlying problems. Certain principles, as well as the reach of the political consensus, can be tested in practice before a commitment is made to elaborate a convention. At the same time, guidelines are established which are useful for the elaboration of a future convention. Where an instrument contains a developed system of supervision, the form of a binding instrument (a convention) may be especially desirable. See generally 1 Review, supra note 1, at 19; Valticos, N., International Labour Law 55-57 (1979)Google Scholar.
63 UN Doc. A/520/Rev.14, at 41 (1982).
64 UN Doc. A/36/553, at 48 (1981).
65 See 2 United Nations Conference on Diplomatic Intercourse and Immunities, Official Records, UN Doc. A/CONF.20/14/Add.l (1962).
66 See 2 United Nations Conference on Consular Relations, Official Records, UN Doc. A/CONF.25/16/Add.1 (1963).
67 United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, UN Doc. A/CONF.39/11/Add.2 (1971).
See also 2 United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, Documents of the Conference, UN Doc. A/CONF.67/18/Add.l (1976); 3 United Nations Conference on Succession of States in Respect of Treaties, Official Records, Documents of the Conference, UN Doc. A/CONF.80/16/Add.2 (1979).
For a list of commentaries on conventions pertaining to narcotic drugs and similar substances, see UN Doc. A/35/312/Add.1, at 30 n.6 (1980).
68 UN Doc. A/35/312/Add. 1, at 5, 9 (1980) (comments by Austria).
69 Id. at 30 (comments by the United Kingdom).
70 GA Res. 39/46, UN Doc. A/RES/39/46 (1984).
71 See generally UN Doc. A/36/553, at 62 (1981).
72 See UN Doc. A/35/312/Add.l, at 3 (1980) (comments by Austria).
73 UN Press Release SG/SM/494, July 4, 1983, at 3-4.
74 Franck, , Of Gnats and Camels: Is There a Double Standard at the United Nations?, 78 AJIL 811, 819-30 (1984)Google Scholar.
75 GAOR Supp. (No. 1) at 2, UN Doc. A/39/1 (1984).
76 Id. at 5.