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The International Court of Justice and the Human Rights Clauses of the Charter

Published online by Cambridge University Press:  28 March 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Yale Law School (emeritus)
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Extract

The Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), contains a veritable tour d’horizon of contemporary international law and of the law of international organizations. It ranges over provisions of the Covenant of the League of Nations and over many articles of the Charter of the United Nations.

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 2 , April 1972 , pp. 337 - 351
Copyright
Copyright © American Society of International Law 1972 

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References

1 [1971] I.C.J. Rep. 16; 66 A.J.I.L. 145 (1972).

2 Hudson, Manley O., “Integrity of International Instruments,” 42 A.J.I.L. 105–108 (1948)Google Scholar.

3 1949 I.L.C. Yearbook 178, 25th Meeting, par. 6.

4 Ibid. 179, par. 24; also Report of the International Law Commission covering its First Session, 1949, General Assembly, 4th Sess., Official Records, Supp. No. 10 (A/925), p. 7, par. 40, and 1949 I.L.C. Yearbook 287.

5 Hans Kelsen, The Law of the United Nations 29–32 (1950).

6 Idem, Principles of International Law 226, 237 (2nd ed., revised and edited by Robert W. Tucker, 1966).

7 H. Lauterpacht, International Law and Human Rights 147–149 (Stevens & Sons Ltd., 1950; reprinted by Archon Books, 1968). See also Lauterpacht’s report “Human Rights, the Charter of the United Nations, and the International Bill of the Rights of Man” in Report of the 43rd Conference (Brussels) of the International Law Association, pp. 80 et seq. (1948).

8 Philip C. Jessup, A Modern Law of Nations—An Introduction 91 (1948).

9 Wright, Quincy, “National Courts and Human Rights—The Fujii Case,” 45 A.J.I.L. 62–82 at 73 (1951)Google Scholar (Emphasis added). Wright’s article was primarily devoted to the question whether the human rights provisions of the Charter are self-executing, which is a problem different from that whether, in international law, they impose legal obligations on the Parties to the Charter. The passage quoted in the text leaves no doubt that his answer to the latter question was in the affirmative. In the late forties and early fifties a large body of literature devoted to the question dealt with in the text appeared. In addition to those already quoted, attention is drawn to the following: Kunz, in 43 A.J.I.L. 43 (1949), the same, in 1951 Proceedings, American Society of International Law 115; Preuss in 46 A.J.I.L. 289 (1952); Hudson in 44 ibid. 543 (1950).

10 Georges Scelle, 1949 I.L.C. Yearbook 169, 23rd Meeting, par. 76.

11 Blaine Sloan, F., “Human Rights, the United Nations and International Law,” 20 Nordisk Tidsskrift for International Ret, Acta scandinavica juris gentium 30–31 (1950)Google Scholar.

12 Heinz Guradze, Der Stand der Menschenrechte im Völkerrecht 110–111 (1956).

13 Jacob Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations. A Commentary 105 (1946).

14 Resolutions of the Economic and Social Council 195 (VIII) of March 7, 1949, and 350 (XII) of March 19, 1951; Report of the Ad Hoc Committee on Forced Labor, 1953, E.S.C.O.R., 16th Sess., Supp. No. 13, Doc. E/2431, and No. 36 in the Studies and Reports (New Series) of the International Labor Office, 619 pp.; General Assembly Res. 740 (VIII) of Dec. 7, 1953, E.S.C. Res. 524 (XVII) of April 27, 1954; General Assembly Res. 842 (IX) of Dec. 17, 1954.

15 General Assembly Res. 285 (III) of 1949.

16 General Assembly Res. 1353 (XIV) of 1959; 4723 (XVI) and 1961; and 2079 (XX) of 1965.

17 General Assembly Res. 44 (I) of 1946; 265 (III) of 1949; 395 (V) of 1950; 511 (VI) of 1952. See also Res. 615 (VII) of 1952; 719 (VIII) of 1953; 816 (IX) of 1954; 919 (X) of 1955; 1015 (XI) of 1957; 1179 (XII) of 1957; 1302 (XIII) of 1958; 1460 (XIV) of 1959; 1597 (XV) of 1961; and 1662 (XVI) of 1961.

18 General Assembly Res. 616 (VII) of 1952. See also Res. 721 (VIII) of 1953; 820 (IX) of 1954; and 917 (X) of 1955. For the reports of the Commission established by Res. 616 (VII) see G.A.O.R., 8th Sess. a.i. 21, Supp. No. 16, Doc. A/2505 (1953); ibid., 9th Sess. a.i. 23, Supp. No. 16, Doc. A/2719 (1954); ibid., 10th Sess. a.i. 23, Supp. No. 14 (A/2953) (1955).

19 General Assembly Res. 721 (VIII) of 1953.

20 See the resolutions listed in note 18 above and further: General Assembly Res. 1016 (XI) of 1957; 1178 (XII) of 1957; 1248 (XIII) of 1958; 1375 (XIV) of 1959; 1598 (XV) of 1961 (.. . the racial policies. .. are a flagrant violation of the Charter. .. and are inconsistent with the obligations of a Member State); 1663 (XVI) of 1961 (calls the attention of the Security Council to the provision of Art. 11 (3). .. a flagrant violation of the Charter. .. totally inconsistent with South Africa’s obligations as a Member State. .. reminds the Government of South Africa of the requirement of Article 2 (2), that all Members shall fulfill in good faith the obligations assumed by them under the Charter).

21 General Assembly Res. 1761 (XVII) of 1962; the committee established by this resolution was later renamed “Special Committee on Apartheid,” decision of Dec. 8, 1970, 1921st meeting, resolutions adopted by the General Assembly during its 25th Session, G.A.O.R., 25th Sess. (1970), Supp. No. 28 (A/8028), p. 37. For further action by the General Assembly, see Res. 1881 (XVIII) of 1963; 2054 (XX) of 1965 (draws the attention of the Security Council to the fact that action under Ch. VII is essential); 2202 (XXI) of 1966; 2308 (XXII) of 1967; 2396 (XXIII) of 1968; 2506 (XXIV) of 1969; 2624, 2627, and 2671 (XXV) of 1970 (condemnation of the policies of apartheid as a crime against humanity; a crime against the conscience and dignity of mankind; repeated appeals to the Security Council to apply Ch. VII; recommendations of various forms of sanction against South Africa); 2764 (XXVI) of 1971.

22 Res. 134 (1960), Doc. S/4300. For the reports of the Secretary General on this assignment, see Annual Report of the Secretary General on the Work of the Organization 1959/1960, G.A.O.R., 15th Sess., Supp. No. 1 (A/4390), item 13; idem, 1960/1961, G.A.O.R., 16th Sess., Supp. No. 1 (A/4800), item 18.

23 Res. 181 (1963).

24 Res. 182 (1963).

25 Security Council, 19th Year, Official Records, Supp. for April, May and June, 1964, Doc. S/5658, Annex.

26 Res. 191 (1964).

27 Res. 2 (XXIII) of the Commission on Human Rights, Report on the 23rd Session of the Commission (1967), E.S.C.O.R., 42nd Sess., Supp. No. 6 (E/4322), par. 268.

28 E.S.C. Res. 1236 (XLII) of 1967.

29 Res. 2 (XXIV) of the Commission on Human Rights, Report on the 24th Session of the Commission (1968), E.S.C.O.R., 44th Sess., Supp. No. 4 (E/4475), Ch. XVIII.

30 Resolutions of the Commission on Human Rights 5 (XXIV) of 1968; 21 (XXV) of 1969; 8 (XXVI) of 1970; and 7 (XXVII) of 1971; E.S.C. Res. 1333 (XLIV) of 1968; 1424 (XLVI) of 1969; 1501 (XLVIII) of 1970; General Assembly Res. 2440 (XXIII) of 1968; 2547 (XXIV) of 1969; 2714 (XXV) of 1970.

31 General Assembly Res. 2714 (XXV) of 1970, operative par. 8 (a).

32 Res. 6 (XXV) of the Commission on Human Rights, Report on the 25th Session of the Commission (1969), E.S.C.O.R., 46th Sess., Doc. E/4621, Ch. XVIII, item 6.

33 General Assembly Res. 2443 (XXIII) of 1968; see also Res. 2727 (XXV) of 1970. The reports of the Special Committee are in G.A.O.R., 25th Sess. (1970) a.i. 101, Doc. A/8089, and G.A.O.R., 26th Sess. (1971) a.i. 40, Doc. A/8389.

34 General Assembly Res. 128 (II) of 1947; Economic and Social Council Res. 52 (IV) and 84 (V) of 1947; 193 (VIII) of 1948; 239 (IX) of 1949, and 277 (X) of 1950; decisions of the Int. Labor Conference at its 30th Session in 1947 and of the Governing Body at its 110th Session (1949/1950), 111th and 113th Sessions (1950) and at its 117th Session (1951). These materials are collected in 1949 U.N. Yearbook on Human Rights 293–295 and 378–380; 1950 ibid. 498–499; 1951 ibid. 573–575. See Jenks, The International Protection of Trade Union Freedom, Ch. 8, pp. 180–200 (1957); idem, in The International Protection of Human Rights 221–229 (Evan Luard, ed., 1967); idem, in Nobel Symposium, International Protection of Human Rights 242–244 (Eide and Schou, eds., 1968); Ernst B. Haas, Human Rights and International Action, The Case of Freedom of Association (1970).

35 Economic and Social Council Res. 1503 (XLVIII) of May 27, 1970.

36 E.S.C.O.R., 4th Sess., Supp. No. 3, Report of the Commission on Human Rights, First Session, Doc. E/259, par. 22.

37 Economic and Social Council Res. 75 (V) of Aug. 5, 1947. For the history of the question of petitions or “communications” in the United Nations between the adoption of Council Res. 75 (V) of 1947 and the adoption of Council Res. 1503 (XVIII) of 1970, see John P. Humphrey in 4 Revue des droits de rhomme [Human Rights Journal] 466– 475 (1971); see also John Carey, UN Protection of Civil and Political Rights, Ch. IX, pp. 84–94 and passim (1970).

38 Report by the Secretary General on the present situation with regard to communications concerning human rights, U.N. Doc. E/CN.4/169, May 2, 1949.

39 General Assembly Res. 542 (VI) of Feb. 4, 1952; draft resolution by Egypt, Docs. A/C.3/L.240; A/C.3/SR.417; Economic and Social Council Res. 441 (XIV) of July 23, 1952.

40 U.N. Docs. A/C.3/L.368; A/C.3/SR.521 and 522.

41 G.A.O.R., 11th Sess. (1956–1957) a.i. 60, U.N. Docs. A/3187 and Add. 1; A/C.3/L.592 and Rev. 1; Report of the Third Committee, Doc. A/3524.

42 E.S.C.O.R., 26th Sess. (1958), Supp. No. 8, Report of the Commission on Human Rights, 14th Sess. (1958), Doc. E/3088, pars. 183–195, and Res. 10 (XIV); E.S.C.O.R., 28th Sess. (1959), Supp. No. 8, Report of the Commission on Human Rights, 15th Sess. (1959), Doc. E/3229, pars. 248–256, and draft resolution IV in Ch. XIV; see also Res. 728 F (XXVIII) of July 30, 1959.

43 G.A.O.R., 20th Sess. (1965), a.i. 23, Annexes, Doc. A/6000, Rev. 1, Ch. II, par. 463.

44 Economic and Social Council Res. 1102 (XL) of March 4, 1966; E.S.C.O.R., 41st Sess. (1966), Supp. No. 8, Report of the Commission on Human Rights, 22nd Sess. (1966), Doc. E/4184, pars. 163–222, and Res. 2 (XXII); Council Res. 1164 (XLI) of Aug. 5, 1966; General Assembly Res. 2144 A (XXI) of Oct. 26, 1965, operative par. 12; E.S.C.O.R., 42nd Sess. (1967), Supp. No. 6, Report of the Commission on Human Rights, 23rd Sess. (1967), Doc. E/4322, pars. 271–394, particularly Res. 8 (XXIII) and 9 (XXIII).

45 Res. 1235 (XLII) of June 6, 1967; see also Res. 17 (XXV) of the Commission on Human Rights and draft resolution IX presented for adoption by the Council both in E.S.C.O.R., 46th Sess. (1969), Report of the Commission on Human Rights, 25th Sess. (1969), Doc. E/4621. Summary of proceedings in pars. 407 to 435; Report of the 21st Sess. of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Doc. E/CN.4/976, particularly Res. 2 (XXI) and pars. 71–92; Council Res. 1422 (XLVI) of June 6, 1969; Res. 7 (XXVI) of the Commission on Human Rights and draft resolution V presented for adoption by the Council, both in E.S.C.O.R., 46th Sess. (1970), Supp. No. 5, Doc. E/4816. Summary of the proceedings in pars. 132–146.

46 U.N. Doc. E/CN.4/1070.

47 General Assembly Res. 2144 A (XXI), par. 12.

48 [1971] I.C.J Rep. 58, par. 133.

49 Ibid. 50, par. 104.

50 Ibid. 56–57, par. 128.

51 Ibid. 57, par. 129. Emphasis added.

52 Ibid. Emphasis added.

53 In his Separate Opinion Judge de Castro speaks of the administration of an entrusted territory contrary to the purposes and principles of the Charter and explains this concept by adding, in brackets, Art. 1, par. 3, and Art. 76 (c). The latter is part of Chapter XII and deals with encouragement of respect for human rights as one of the basic objectives of the trusteeship system.

54 [1971] I.C.J. Rep. 311 et seq.

55 Ibid. 208 et seq.

56 See text at notes 7 to 12 above.

57 Annex to General Assembly Res. 2106 A (XX), Dec. 21, 1965, reprinted in Human Rights, A Compilation of International Instruments of the United Nations, Doc. A/CONF. 32/4, U. N. Pub. Sales No.: E. 68 XIV. 6, item 8; 60 A.J.I.L. 650 (1966).

58 Convention No. 111 , adopted in 1958 by the International Labor Conference, reproduced in the Compilation A/CONF. 32/4, referred to in the preceding footnote, item 9.

59 Adopted by the General Conference of UNESCO in 1960, reproduced in the Compilation A/CONF. 32/4, item 10.