IO Files
Position Paper Prepared in the Department of State for the United States Delegation to the Sixth Regular Session of the General Assembly of the United Nations1
SD/A/C.3/145
Draft International Covenant on Human Rights
the problem
What should be the position of the United States concerning the draft International Covenant on Human Rights?
recommendations
(1) The United States would prefer to have the provisions on economic, social and cultural rights separated from the present draft Covenant on Human Rights and provided for in a separate instrument. The following course of action should accordingly be followed:
- (a)
- The United States should, if it finds majority sentiment in the Assembly favorable, support the position that two instruments instead of the present single instrument on human rights be drafted. One instrument would contain civil and political rights and the other instrument would contain economic, social and cultural rights.
- (b)
- If it appears majority sentiment in the General Assembly is unfavorable to position (a) and the General Assembly decides to refer the draft Covenant to the Commission on Human Rights for its further consideration, the United States Delegation should, if it is likely to obtain majority support in the Assembly, propose and support the position that the General Assembly defer its decision and request the Commission to prepare three instruments for the consideration of the Assembly at its 1952 session—the first instrument would contain civil, political, economic, social and cultural rights; the second instrument would contain only civil and political rights; and the third instrument would contain only economic, social and cultural rights. The Assembly would at its 1952 session then decide whether all these rights should be an one or two instruments, accepting either the pattern of the first instrument or the pattern of the second and third instruments.
(2) If majority sentiment in the General Assembly appears unfavorable to recommendations 1(a) and 1(b) and favorable to the inclusion of economic, social and cultural provisions in a single Covenant with civil and political rights, the United States Delegation should not oppose but should vote for the inclusion of economic, social and cultural provisions in a single Covenant. In this event the United States should explain that it intends to vote for the retention of these [Page 754] provisions because of the general sentiment in the Assembly favoring this view. The United States Delegation should not oppose majority sentiment in the Assembly on this question for reasons stated below in the comment section of this paper.
(3) The United States should, during the consideration of the Covenant in the General Assembly, make a statement of understanding along the following lines with respect to the provisions on economic, social and cultural rights:
“The United States desires to make clear for the record its understanding of the term ‘rights’ as used in the economic, social and cultural provisions in Part III of the Covenant in contrast to the use of the term ‘rights’ in the civil and political provisions in Part II. The civil and political rights are of such a nature as to be given legal effect promptly by the adoption of legislative or other measures as may be necessary. The economic, social and cultural rights, while spoken of as ‘rights’ are, however, to be treated as objectives which states adhering to the Covenant will within their resources undertake to achieve progressively by private as well as public action.
“The United States wishes to reiterate in the General Assembly, as its representatives repeatedly stated in the Commission on Human Rights and in the Economic and Social Council, this understanding of the United States Government that the economic, social and cultural rights in the Covenant are recognized as objectives to be achieved progressively, as provided in Article 19.”
In making this statement the Delegation may wish to point out the part that the United States is taking with other countries toward the attainment of improved economic, social and cultural conditions in the world. The United States believes that all the Members of the United Nations should not only support the Covenant as a standard of action in economic, social and cultural matters but should also actively participate in the many specialized agencies which are doing daily constructive work in these fields. It might also be pointed out that the Soviet Union talks about achievements in these fields but contributes very little constructively to the improvement of economic, social and cultural conditions in other countries either through the specialized agencies or through the United Nations.
(4) The United States should go along with prevailing sentiment in the General Assembly for the completion of the Covenant in this session or its reference to the Commission on Human Rights for further consideration. The Delegation should explain that it is prepared to participate in the completion of the Covenant at this session if it is possible to do so and if other delegations are also prepared to do so.
(5) If the General Assembly undertakes a discussion of drafting changes in the Covenant, the United States Delegation should be guided by Annex A. If the Assembly proceeds with the drafting of the Covenant, the Delegation should indicate its preference that the [Page 755] Assembly begin with the consideration of Article 1 since in this way the first 18 articles would be discussed first. The United States considers these articles as being closer to a satisfactory completed drafting stage than the other articles of the Covenant.
(6) The United States should continue to oppose the inclusion of provisions in the Covenant to extend the right of complaint to individuals, groups or organizations. The United States should point out that such provisions should, if they are to be provided, be included in a separate protocol or protocols. The United States should also oppose the inclusion of a provision in the Covenant referring to other international instruments authorizing complaints to be filed by individuals, groups or organizations.
(7) The United States should urge the inclusion of a federal state article in the Covenant on Human Rights as set forth in Article 71 of Annex A in order that it will be expressly clear that the obligations of the United States under the Covenant are limited to matters which, under the Constitution of the United States, are in their federal jurisdiction. This article should be applicable to the economic, social, and cultural provisions as well as the civil and political provisions of the Covenant.
comment
1. General
The Commission on Human Rights at its 1951 session drafted two new parts of the Covenant, one setting forth economic, social and cultural rights and another setting forth reporting requirements. In addition, the Commission revised the complaint provisions with respect to civil and political rights. The Commission did not have time to review the other parts of the Covenant. Part III of the Covenant now sets forth the economic, social and cultural rights. Part IV sets forth the complaint provisions and Part V the new reporting requirements. Parts I and II on civil and political rights remain unchanged. Part VI which contains drafts of the federal state article, the territories article and procedural articles was not considered except to include the territories article which was approved by the General Assembly at its Fifth (1950) session.
2. Economic, Social and Cultural Rights
As pointed out above in recommendation 1, the United States would prefer to have the provisions on economic, social and cultural rights separated from the present draft Covenant and provided for in a separate instrument. It is hoped that majority sentiment in the Assembly will support the course of action proposed in recommendation 1. If, however, Assembly sentiment is unfavorable to this recommendation and favorable instead to the retention of economic, social and cultural [Page 756] provisions in a single Covenant with civil and political rights, the United States Delegation should not propose or support recommendation 1 but should instead vote for the retention of these provisions in a single Covenant.
After a careful consideration of the factors involved in the views expressed by other countries for the inclusion of these provisions in the Covenant, at the 1950 session of the General Assembly, the 1951 session of the Commission on Human Rights and the July–September 1951 session of the Economic and Social Council, the United States has come to the conclusion that it would not be wise to oppose majority sentiment in the Assembly at this session on this question. To press for the separation of these provisions in the face of majority opposition in the Assembly would only invite a great deal of ill-will against the United States and rebound unfavorably with respect to the general political position of the United States vis-à-vis other countries, particularly in view of the many underdeveloped countries urging the inclusion of these provisions in the Covenant.
The economic, social and cultural provisions in the Covenant constitute a symbol of the needs and aspirations of these countries. They look to these articles as a lever which may help to raise them out of their present depressed condition. They do not understand the preference of the United States that these provisions not be included in the same instrument as civil and political rights. They do not understand, and in fact resent the reluctance of the United States to state these provisions in terms of rights. They insist on the use of the term “rights”—many of these provisions are already stated in terms of rights in their Constitutions. In general they regard these provisions as goals or objectives, not as immediate obligations. In particular, the individuals representing governments in the Commission and in the General Assembly feel that they need such provisions in the Covenant as a standard with which to challenge and prod their own governments and leaders in their countries to greater effort in the direction of attaining economic and social improvement, despite the fact that it is realized that they are handicapped in the full attainment of these objectives by the lack of funds, technical “know-how,” etc.
It is also necessary to consider this question in connection with the propaganda problem it presents, vis-à-vis the Soviet Government and its unscrupulous propaganda tactics.
At the same time, however, the United States should make it clear, as appropriate, that the economic, social and cultural provisions are obviously different in a number of respects from the civil and political provisions of the Covenant. These differences were recognized by the Commission on Human Rights and are acknowledged in the draft Covenant.
[Page 757]3. Reporting Requirements
The Commission initially drafted a new Part V in the Covenant to provide that States ratifying the Covenant would submit reports concerning progress made by them in achieving the observance of economic, social and cultural rights. At the same time, the Commission provided in Article 60 that these reports would be submitted in conformity with the recommendations of ECOSOC and the General Assembly in the exercise of their general responsibility calling upon all Members of the United Nations to provide such reports. The United States Delegation should support Article 60 as set forth in the draft Covenant.
There was strong sentiment in the Commission that all Members of the United Nations should be called upon to submit these reports, whether or not they ratified the Covenant on Human Rights. It was recognized of course that only States ratifying the Covenant could be obligated under the Covenant to furnish these reports, and that other Members of the United Nations would not be under a similar obligation to do so. It was felt, however, that since it was being provided in the Covenant that the reports would be considered by the United Nations, all Members of the United Nations should be requested to submit the reports by the adoption of recommendations to this effect by the Economic and Social Council and the General Assembly.
The United States Delegation should support the provisions on reporting except as set forth in Annex A.2
In adopting Part V at its 1951 session, the Commission postponed its decision as to whether the reporting requirements of this Part should apply only to the economic, social and cultural rights recognized in Part III or also to the civil and political rights in Part II of the Covenant.
On this question, the United States would prefer that the reporting requirements of Part V be applicable solely to the economic, social and cultural rights in Part III and to limit reporting on the civil and political rights along the lines of the United States reporting proposal for an additional paragraph 4 for Article 1.
As a second position, however, if sentiment in the General Assembly favors the extension of the reporting program of Part V to the civil and political rights, the United States Delegation should go along with this view.
4. Implementation of Civil and Political Rights
The Commission revised Part IV of the draft Covenant on the implementation of the civil and political rights. The United States should support the revised text of these provisions. See, however, the change proposed in Article 33 (in Annex A).
[Page 758]The United States should oppose the application of the implementation procedures set forth in Part IV to the economic, social and cultural rights. There was no sentiment at the 1951 session of the Commission for the application of this procedure to economic, social and cultural rights. It was practically the unanimous view in the Commission that this complaint procedure would not be appropriate for the economic, social and cultural rights. These rights are to be achieved progressively and the obligations of States with respect to these rights are not as precise as with respect to the civil and political rights. The Commission felt it was important to stress the assistance to be accorded to States to achieve economic, social and cultural progress rather than to stimulate complaints against States. The Commission felt that the gradual character of the economic, social and cultural program envisaged was not conducive to an effective complaint procedure.
The Commission at its 1951 session again rejected the inclusion of a provision in the Covenant to extend the right of complaint to individuals, groups and organizations. This proposal was rejected by a vote of 7 to 10 with one abstention. The seven countries voting in favor of this proposal were Chile, Egypt, Guatemala, India, Lebanon, Sweden and Uruguay. The ten countries voting against this proposal were Australia, China, France, Greece, Pakistan, Ukraine, USSR, United Kingdom, United States and Yugoslavia. Denmark abstained.
Guatemala proposed that a provision be included in the Covenant referring to other international instruments authorizing complaints to be filed by individuals, groups and organizations. This proposal was also rejected by the Commission by a vote of 7 to 9 (US) with 1 abstention.
The United States Delegation should continue to oppose the inclusion of provisions in the Covenant to extend the right of complaint to individuals, groups or organizations. The United States Delegation should point out that such provisions should if they are to be set forth, be included in a separate protocol or protocols. The United States Delegation should also oppose the inclusion of a provision in the Covenant such as that proposed by Guatemala to refer in the Covenant to other international instruments authorizing complaints to be filed by individuals, groups and organizations.
5. Federal State Article
The United States should make entirely clear its view that a federal state article should be included in the Covenant on Human Rights and should be applicable to economic, social and cultural provisions as well as to the civil and political provisions in the Covenant. See Article 71 in Annex A for the text of the federal state article supported by the United States for inclusion in the Covenant.
[Page 759]This new Article 71 is designed to meet the proposal of India to the 5th (1949) session of the Commission on Human Rights, the proposals of the United Kingdom at the 5th (1949) and 6th (1950) sessions of the Commission on reporting and the proposal of Denmark at the 1951 session of the Commission to phrase this article in terms of an approved reservation and to reflect the federal state article included in the Convention Relating to the Status of Refugees adopted by the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons at Geneva on July 25, 1951.
This new proposal for Article 71 should help to meet the criticism expressed at the 1950 session of the General Assembly with respect to the earlier language submitted by the United States for a federal state article. In order to secure the support of other delegations to authorize the Commission on Human Rights at its 7th (1951) session to study the inclusion of a federal state article in the Covenant, the United States Delegation indicated in the 1950 session of the General Assembly that it would be willing to take the views of other delegations into account as much as possible in a revision of the federal state article.
Three principal points were made in the discussion in the 1950 session of the General Assembly: (1) there was objection to the use of the word “appropriate” in the United States proposal; (2) there was a general preference for the Indian proposal rather than the United States proposal, a number of delegations feeling that the Indian proposal was stated in a more objective sense than the United States proposal; and (3) considerable support developed for the United Kingdom proposal that a reporting requirement should be included in the federal state article.
The language proposed for Article 71 in Annex A undertakes to meet these three principal objections to the previous United States proposal for a federal state article as well as the proposal of Denmark, made in the Commission on Human Rights at its 1951 session, to call for a reservation on this matter by a federal state. The new language also states with added clarity and emphasis the limited character of the obligations a federal state assumes with respect to its constituent units and includes some of the language of the federal state article approved for the Refugee Convention.
At the same time, it is proposed that a reporting requirement also be included in the Covenant with respect to all States adhering to the Covenant. If a reporting requirement is included in the federal state article requiring a federal state to submit information received from constituent units to the Secretary General of the United Nations, each unitary state should also be required to report with respect to the manner in which provisions of the Covenant are being given effect in that State. In this way, there will be less stress given to the reports [Page 760] of federal states, and unitary states will not be in as strong a position to criticize the reports of federal states. The noncompliance of a unitary state with provisions of the Covenant, as reflected in its reports, will be open for close scrutiny.
6. Territories Article
It was decided in the 1951 session of the Commission on Human Rights that the terrorities article approved by the General Assembly at its 1950 session should be included in the Covenant as Article 72. The United States should not oppose the inclusion of this article in the Covenant.
7. Other Articles of Covenant
The United States should support the articles in Parts I and II and Articles 70 and 73 in Part VI of the Covenant except as set forth in Annex A.