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Vol. 11, No.2 The University of Chicago School 15

The International Commission of Jurists

By SIR LESLIE KNOX MUNRO Formerly Dean of the Faculty of Law at the University of Auck­ land; New Zealand Ambassador to the , New Zea­ land Representative to the United Nations Security Council, Presi­ dent of the Twelfth General Assembly of the United Nations; Secretary-General of the International Commission of Jurists; Visit­ ing Professor of Law at The University of Chicago Law School, 1963.

I as of the International Commis­ Alan Farnsworth, Professor of Law at Columbia, addressing the find, Secretary-General Luncheon Session of the Conference on the Uniform Commercial sion of Jurists, a growing interest throughout the world Code. in its objectives and its work. I am satisfied that for a long time to come there will be a need for such a body MD., Professor of Pharmacology, the University of to secure the observance of the . Michigan Medical School. Let me quote the aims and objectives of the Commis­ "Social Causes. and Costs: A Sociological View of Ad­ sion as set forth in its : diction," Edwin M. Schur, Assistant Professor of So­ by The Commission is dedicated to the support and advancement ciology, Tufts University. of those principles of which constitute the basis of the Rule "Personality and Social Disorder: A Psychiatric View of Law. The Commission conceives that the establishment and of Addiction," by Lawrence Zelie Freedman, MD., enforcement of a legal system which denies the fundamental of the individual violate the Rule of Law. Foundations' Fund Research Professor in Psychiatry, The Commission will the best traditions and the The of School of Medicine. uphold highest University Chicago ideals of the administration of justice and the supremacy of law "Patterns of Controls: A View of Addic­ Legal Legal and, by mobilizing the jurists of the world in support of the Rule tion," by Herbert L. Packer, Professor of Law, Stanford of Law, will, inter alia, advance and fortify the independence of University. the and the and promote fair for all persons accused of . The final segment of the Conference will be devoted The Commission will foster understanding of and respect for to the of Research and in subject "," Policy the Rule of Law and give aid and encouragement to those peoples an Area of Social Crisis and Uncertainty." Harry W. to whom the Rule of Law is denied. Jones, Professor of Law, The University of Chicago, and The Commission consists of jurists who are dedicated to its aims Director of Research, American Foundation, will and objectives and who in their persons provide wide geographic representation of the legal profession of the free world. The Com­ present an opening statement and lead a discussion of mission includes 25 members, which number may be increased in our state of should what, present knowledge, , to a maximum of 40. legislators, administrators, and scientists do to promote I think that it be said that the now rational and appropriate policies and practices in this may properly Jurists the Commission are and area. forming representative lawyers from all parts of the non-Communist world. Communist judges and lawyers are not associated with the Commission for the simple reason that they are op­ posed to the Rule of Law as defined by the Commission. The Commission normally functions through an Exec­ utive Committee which meets in Geneva where the head­ quarters of the Commission are, but from time to time it has met in other countries. The Secretary-General is responsible for the practical work necessary for the realization of the aims and objec­ tives of the Commission and is empowered within the general policy laid down by the Committee to Foreign Law Program Students in residence at the Law School take such action as may be necessary to this end. during 1962-63; left to right: Harold S. Russell, A.B., Yale Uni­ In his report of the Commission's Congress in New David P. Earle III, A.B., Williams James A. versity; College; Delhi, Mr. Norman Marsh, one of my distinguished Donohoe, A.B., St. John's University; and Bruce D. Campbell, predecessors and a well-known British authority on inter­ A.B., Haverford College. All received the J.D. in 1962. Not shown national and has thus defined the Rule are Robert I. Starr, A.B., Northwestern University, and Norman , Vieira, A.B., Columbia University. of Law: 16 The Law School Record Vol. 11, No.2

The Rule of Law, as defined in this paper, may therefore be its presentation of positive steps taken to strengthen the characterized as: "The institutions and not principles, procedures, Rule of Law or to denounce violations of . always identical, but broadly similar, which the experience and The Journal appears twice a and averages about 160 traditions of lawyers in different countries of the world, often year in The Newsletter is a house having themselves varying political structures and economic back­ pages length. essentially grounds, have shown to be important to protect the individual organ and comments on current Commission activities; from and to enable him to the arbitrary government enjoy dignity it includes a report on missions, texts of press statements, of man." changes in Commission membership, and similar mat­ ters. The Newsletter comes to eight or twelve pages and The Commission has evolved, in its ten of op­ years appears whenever circumstances warrant it. a carried out in two eration, policy basically ways: As mentioned above, it is intended that the Commis­ a) the investigation of systematic and general violations of the sion publish annually four numbers of the Bulletin, two Rule of Law. This to requires taking appropriate steps expose numbers of the Journal and such Newsletters as may be those violations to the world at large and taking such action considered necessary. Since October 1954, when the Com­ as may be necessary to rectify breaches of the Rule of Law; mission's publication programme was initiated, the Com­ b) the and of the Rule of Law promotion strengthening through­ mission has published fourteen Bulletins (five since Jan­ out the world by making more precise its meaning, particularly uary 1959), nine Journals (four since January 1959) and with reference to rapidly changing societies. thirteen Newsletters (eight since January 1959). The Commission has been most successful in its inves­ During the period January 1959 to October 1962, the tigations of systematic violations of human rights. In Commission has distributed a total of 1,134,961 individual carrying out this responsibility, aside from the publication units of publications in all languages (1959: 276,330; 1960: of articles, special reports and the issue of press statements, 262,531; 1961: 257,642; 1962: 338,418). the Commission has relied heavily in recent years on the I should emphasize that the 40 to 50,000 judges, law­ situations in countries requiring support of the Rule of yers and teachers of Law who receive the Commission's Law. publications are to the best of my belief actively interested in our work and are on our J t can be argued that the preservaton and promotion its publications. They mailing list because have asked to on of the Rule of Law is part of the daily life of the , they be put the list. but this is all too frequently £orgotten by lawyers whose Once every three or four years, the Commission has a World main concern too often seems to be the increase of in­ Congress, which is always widely attended by from all over the we come. For example, to have practicing lawyers devote Jurists world. Thus, have had Con­ time to the studying of the importance of the independ­ gresses in Berlin, Athens, New Delhi, and last month in ence of the Judiciary-a real and practical problem-ere­ Petropolis near Rio de Janeiro. The Congress at Athens issued what known as quires great invocation on the part of the Commission is the Act of Athens, and that at staff. This is quite remarkable in view of the fact that Delhi the Declaration of Delhi. At the in what is known as the today there are so many glaring examples of countries, Petropolis Congress close at hand, where the Rule of Law is non-existent and Resolution of Rio de Janeiro reached these conclusions: human suffering is appalling, where the efforts of lawyers It considered that the protection of the individual from unlawful and other leading members. of the community could have or excessive interference by government is the foundation of the Rule of the has observed with concern that the averted disaster. In spite of obstacles and the lassitude Law; Congress rights of the individual were transpassed or ignored in many places from which so many of our colleagues suffer, the Com­ in the world and that in many cases this arises from the over­ mission will continue to its associates encourage many reaching by the executive power unrestrained by an independent and friends to act more vigorously for the principles in judiciary. Accordingly the Congress having discussed appropriate measures to remove and excessive which it believes and which should be the daily concern improper encroachment by gov­ ernment on the of the individual in the field of of all lawyers. rights executive action, The Commission has three the regular publications: NOW SOLEMNLY Bulletin , Journal, and Newsletter. Each has its specific adopts the conclusions annexed to this Resolution and reaffirms and The Bulletin, which will now purpose advantages. the Act of Athens and the Declaration of Delhi assembled by four times is to the appear per year, designed permit earlier world conferences; which again were sanctioned in the Commission to offer frequent editorial comments on in­ Law of Lagos by the African Conference on the Rule of Law and calls the International Commission of Jurists stances in which the Rule of Law may be threatened or accordingly upon to give its attention to the following matters which were in the strengthened. The articles are based on the usual pains­ debates of this Congress: taking research, but are generally short and without foot­ 1. The conditions in varying countries on the independence of notes. The Bulletin consists of between generally fifty the judiciary, its security of tenure and its freedom from con­ and The is in a sense more "aca­ fifty-six pages. Journal trol direct or indirect by the executive; demic" in is to contain ar­ appearance, designed longer 2. The encouragement of the establishment of international extensive footnotes is more in ticles with and exhaustive of human rights on a regional basis; Vol. 11, No.2 The University of Chicago Law School 17

3. The role of the profession of law in modern society having asset of the West and it is no illusion to continue to feel that all regard to the conclusions of Committee III and in particular men are attracted to it and better off for it. to its preamble which enjoins: "In a changing and interde­ There are manifestations in certain of the pendent world lawyers should give guidance and leadership discouraging in the creation of new legal concepts, institutions and tech­ new states in Africa of which a prime example is Ghana. to man to meet the and the niques enable challenges dangers While there is a small opposition in the of six, of the times and to realize the aspirations of all people. there is no effective opposition. At the same time, there The lawyer today should not content himself only with the is a detention, the President, Mr. conduct of his practice and the administration of justice. He preventive whereby Nkrumah can into for five and if he so cannot remain a stranger to important developments in eco­ put jail years, nomic and social affairs if he is to fulfil his vocation as a decides for a further period of five years any person of an in the of lawyer; he should take active part process change. whose conduct he disapproves. This Statute was validly He will do this by and economic develop­ inspiring promoting passed and the Courts in Ghana have held that a person ment and social justice. detained has no in the Courts. There is no trial The conditions to be fulfilled and the steps to be taken remedy and the for is an to in order to enable the lawyer to play this role effectively were only opportunity regress application dealt with to some extent in the Conclusions of the Fourth the President, who need give no reasons for his refusal Committee of the International Congress of Jurists, New to release a detainee. The numbers detained have run Delhi, India, 1959, and of the Third Committee of the African into hundreds. Of course, preventive detention is part of Conference on the Rule of Law, Lagos Nigeria, 1961. the Law of many of the new countries. During the last 4. The improvement of education where it is needed so legal war, it was in this country and the United that the and the of the Rule of Law employed teaching understanding States. The adduced in its favor is that in time in the best traditions of the of the bar is inculcated argument war or no a state of in those entering the profession of the law. of where there is war but emergency, the State should be to act to 5. The continuance of its important work in investigating and empowered preserve public reporting. safety. I consider the classic case on preventive detention in time of war to be Liversidge v. Anderson 1942 A.C. There are no doubt varying interpretations of the Rule 206. In this decision, the House of Lords applied the sub­ of Law. Some would identify it with parliamentary de­ jective principle and decided that where the Secretary of in which there is an and where the mocracy, opposition State acting in good faith under a certain is one man one vote. principle adopted of Thus, many makes an order in which he recites that he has reasonable denied that the Rule of Law can exist in the single party cause to believe a person to be of hostile associations and state. that by reason thereof it is necessary to exercise control The is thus: "if a one question posed hypothetical party over him and directs that that person be detained, a Afro-Asian state has a free an bar, independent judiciary, of Law cannot inquire whether in fact the Secretary of a free press and no preventive detention, does not the State had reasonable grounds for his belief. I wish to Rule of Law exist therein as much as it does so in France refer in particular to the observations Lord Macmillan today?" With the partial acceptance of Pakistan while it made: was subject to martial law, those Asian states which have In the first place, it is important to have in mind that the regu­ one or rule do not observe the Rule adopted party lation in question is a war measure. This is not to say that the of Law. I draw your attention to some observations made courts ought to adopt in wartime canons of construction different by Mr. John J. McCloy: from those which they follow in time. The fact that the nation is at war is no justification for any relaxation of the vigi­ Mr. (Patrick Gordon) Walker has out the of our pointed fatuity lance of the courts in seeing that the law is duly observed, espe­ belief that democracy and free elections will make friends and win cially in a matter so fundamental as the liberty of the subject­ the world. Yet I have the we should not accept too feeling readily rather the contrary. But in a time of emergency when the life the that the Asian may not be interested in thought developing of the whole nation is at stake it may well be that a regulation his individual freedoms. Do we not abandon too much to Com­ for the defence of the realm may quite properly have a meaning munism if we cease the doctrine of freedom from stressing simple which because of its drastic invasion of the liberty of the subject the of the secret and the concentration oppression camp? the courts would be slow to attribute to a peace time measure. The Asian may be far less sensitive than a Briton to his as rights The purpose of the regulation is to ensure public safety, and it an individual, but he understands them, or, let us say, recognizes is right so to interpret emergency as to promote rather them. he would it if he were no Certainly appreciate longer subject than to defeat its efficacy for the defence of the realm. That is in to arbitrary arrest or There is more funda­ decapitation. something accordance with a general rule applicable to the interpretation mental here than an electoral system, and a fair increase given of all or statutory in peace time as well as in the Asian standard of the idea as catch fire living, may readily in war time. in Asia as it did in an earlier day in Europe. 6. What the political form will be in this part of the world is I should add that Lord Atkin strongly dissented. The hard to be a welfare state over an say-it may presided by oligarchy Commission is constantly inquiring into this question of -it may well be something far less than parliamentary democracy, preventive detention and has protested strongly to Mr. as we know it. But constant emphasis on freedom from the police Nkrumah. One of the he detained was the Presi­ call and slave labour is appealing even if the individual or his persons whole country never heard of the Bill of Rights. This is a true dent of the national section of the Commission in Ghana. 18 The Law School Record Vol. n, No.2

I am happy to say that this gentleman has been released, Convention on Human Rights, and regional courts anal­ but the government of Ghana refused him permission to agous to the European Court of Human Rights. Close attend the Congress at Petropolis. liaison between such regional courts would have to be There may be arguments that in time of war or ex­ established in order to develop a common body of j udi­ treme emergency preventive detention is not incompatible cial decisions." to the Rule of Law, but I believe that where the emer­ The Congress and therefore the Commission believes gency is created in effect by a state removing any opposi­ that "In a changing and interdependent world, lawyers tion, preventive detention is wholly opposed to the Rule should give guidance and leadership in the creation of of Law. new legal concepts, institutions and techniques to enable In this address I must direct myself to the future activi­ man to meet the challenge and the dangers of the times ties of the Commission. and to realize the aspirations of all people. This of considered at the aspect was, course, carefully "The lawyer today should not content himself with the Congress meeting at Petropolis. I have given you the conduct of his practice and the administration of justice. terms of the Resolution of Rio. He cannot remain a stranger to important developments Let me go briefly into some essentials. Weare living in economic and social affairs if he is to fulfil his vocation in a When I "we" of I changing society. say lawyers, as a lawyer: he should take an active part in the process would look at this juncture particularly at our brethren of change. He will do this by inspiring and promoting in the underdeveloped and emerging countries in Asia, economic development and social justice." and Latin America. These countries are Africa, subject The Commission has a responsibility, as I believe, to to enormous both internal and external. One has stresses, encourage . to look at India alone, with its enormous only population, "For the legal profession to be able to perform its social its and its menace from its northern great poverty neigh­ function satisfactorily, the teaching of law should lay bour. special emphasis on three points: The role of the lawyer in all such countries is of su­ "1. reveal the which low can preme importance. He is always in government. Many processes through evolve, and in the social lawyers are in the administrative agencies and . promoting orderly significant changes and economic of to Of course, they form the judiciary, the bar, the organization society leading improved standards of branch of the profession. They function in most govern­ living: ment departments. They educate those who are to be­ "2. stress the study of the principles, institutions and come lawyers and judges. proceedings that are related to the safeguarding and pro­ The Commission must seek to encourage and when of the rights of individuals and groups: necessary, to protect the lawyer in all his various activities. "3. imbue students with the principles of the Rule of The Commission's to the as as to duty is layman well Law, making them aware of its high significance, em­ the lawyer and to help in the task of assisting the layman phasizing the need of meeting the increasing demands of in the of administrative and tribunals. labyrinth agencies social justice, and helping develop in the student the per­ It must encourage lawyers in all countries to see that sonal qualities required to uphold the noble ideals of the there are certain minimum standards for the safeguard­ profession and secure the effective enforcement of law in ing of the Rule of Law in the adoption of administrative the community." regulations and in their enforcement. The Congress considered it desirable that States should "There are two interdependent factors: the content of prepare and adopt international conventions providing a courses and teaching methods. What follows, is in no right to appeal for individuals and interested groups be­ sense a suggested complete curriculum for law students. fore an international to guarantee, in exceptional Obviously important subjects for the establishment of as well as in normal circumstances, the protection of the Rule of Law are those which stress the content of prescribed rights. human freedoms and the protection of the individual "It is considered to be necessary that at least in cases from arbitrary action: constitutional and administrative involving Human Rights there should be an , and international legal studies. The court to which final recourse might be had by an individ­ importance of procedural safeguards for human rights ual whose rights have been infringed or threatened. Such makes the study of procedural law indispensable. Stu­ an international tribunal would be a World Court of dents must be instructed in general legal principles and Human Rights, its writ effective in any . in reasoning on specific legal problems. All courses must "The first step in this direction could be regional con­ be taught with emphasis on their social, economic, polit­ ventions with optional clauses analogous to The European ical and historical background. Convention for the Protection of Human Rights and "A reference should be made regularly to other legal Fundamental Freedoms and the Inter-American Draft systems and comparisons drawn between them so as to Vol. 11, No.2 The University of Chicago Law School 19 allow a more precise evaluation of the merits and defects of the students' own legal system. "Law Schools should be an active forum for all matters of legal interest and not merely function for the training of law students. They should therefore organize discus­ sions of topics relating to legal reform which concern the area served by them. They should provide refresher courses in new developments of law."

The 1962-63 Committee for the Hinton Moot Court Competition. Seated, clockwise from left front: Richard L. Sigal, A.B., Yale University, Chairman; Donald Segal, S.B., University of Wiscon­ sin, Vice-Chairman; Donald Elisburg, S.B., I.I.T., Vice-Chairman; Henry W. Siegel, A.B., A.M., U.C.L.A., Secretary; Alexander Allison, A.B., Amherst College; Dennis H. Kops, A.B., Harpur College; Barry E. Fink, B.S.C., DePaul University; Ronald Cope, A.B., University of Chicago; Gary Bengston, A.B., Southern Illi­ nois University; Robert Leone, A.B., DePaul University; Russell M. Pelton, A.B., DePauw University; Gaar W. Steiner, A.B., Law­ rence College; and Daniel L. Rubin, S.B., University of Pennsyl­ vania. Standing, left to right: Stewart Diamond, A.B., University of Thomas A.B., Paul The Board of Directors of the Law Student Association for 1962- Chicago; Mansager, Wesleyan University; J. Wisner, S.B., Marquette University; and Charles R. Staley, A.B., 63, clockwise from left: T. Frank O'Rourke, A.B., C.C.N.Y., Harvard University. President, Autumn and Winter Quarters; Oliver S. Chappell, A.B., Brown University; Peter J. Mone, A.B., Bowdoin College; Thomas A. Ross, A.B., St. Mary's College; Alan Orschel, A.B., Dartmouth College; Charles Kleinbaum, S.B., University of Pennsylvania, President, Spring Quarter; Richard Fine, S.B., University of Wis­ consin; James Rainey, S.B., University of Notre Dame: Gerald G. Hester, A.B., Whittier College; William F. Steigman, A.B., Haver­ ford College; Richard Brown, A.B., Princeton University; and Richard Casson, A.B., Colby College.

The Board of Editors of the University of Chicago Law Review for 1962-63. Seated, clockwise from center front: Edwin B. Firm­ age, S.B., Brigham Young University; Rex Lee, A.B., Brigham Young University; June M. Weisberger, A.B., Swarthmore Col­ lege; Bethilda Olson, A.B., Mills College; Maurice McSweeney, B.S.C., DePaul University; Anthony Gilbert, A.B., Harvard Uni­ versity; John R. Wing, A.B., Yale University; Robert Miller, A.B., University of Chicago; Noel Kaplan, B.S.C., De Paul University; James Marlas, A.B., Harvard University; William Kelley, A.B., Marquette University, Managing Editor; George Fletcher, A.B., University of California; and Burton Glazov, S.B., Northwestern University. Standing, left to right: Paul J. Galanti, A.B., Bowdoin Shown on the bench of the Kirkland Courtroom after College, Managing Editor; William T. Huyck, A.B., Dartmouth argument in two cases from the Court's regular calendar, left to College, Managing Editor; Lee McTurnan, A.B., Harvard Uni­ right: The Honorable Arthur J. Murphy, JD'22, the Honorable versity, Editor-in-Chief; George Liebmann, A.B., Dartmouth Col­ Henry M. Burman, Presiding Justice, and the Honorable Robert lege, Managing Editor; and William L. Velton, A.B., Amherst E. English, JD'33, all of the Illinois Appellate Court. College, Managing Editor.