JOURNAL OF THE international c o m m is s io n o f j u r is t s Editor: SeAn MacBride Junb 1968 V o l. IX, No. 1 PART TWO Speciali Issue 19 A 68 ! I!NATIONAL YEAR FOR HUMAN RIGHTS INTERNATIONAL COMMISSION OF JURISTS * GENEVA P R IC E 6.75 Swiss Francs RECENT PUBLICATIONS THE RULE OF LAW and HUMAN RIGHTS • ■ 1 Principles o f the Rule o f Law defined—their implications upon the Individual, Society, Economic and Social Development, the Legislature, Executive, Judiciary, Legal Profession. Sources: Prin­ cipal human rights Conventions, International Conferences of Jurists. Well-indexed, with Appendices. Price Swiss Francs Hard back .................... 6.75 Paper back ................ 5.60 A list of our other publications will be supplied on demand. Please, write to : THE INTERNATIONAL COMMISSION OF JURISTS ' 2, QUAI DU CHEVAL-BLANC - GENEVA - SWITZERLAND JOURNAL OF THE INTERNATIONAL COMMISSION OF JURISTS Editor: Sean MacBride J u n e 1968 V o l. IX, N o. 1 INTRODUCTION m J o h n H u m ph r e y HUMAN RIGHTS, THE UNITED NATIONS AND 1968 1 F el ipe H errera THE INTERNATIONAL SOCIAL ORDER . AND HUMAN RIGHTS 14 Walter Raeburn THE RIGHT TO AN EFFECTIVE REMEDY AND A FAIR TRIAL UNDER COMMON LAW 19 M oham m ed E l F asi THE RIGHT TO EDUCATION AND CULTURE 33 T e r je W o ld THE RIGHT TO SOCIAL SERVICES 41 C. W il fr ed J en k s WORK, LEISURE AND SOCIAL SECURITY as HUMAN RIGHTS IN THE WORLD COMMUNITY 49 R ene M a r c ic DUTIES AND LIMITATIONS UPON RIGHTS 59 Sir T. M c C a r th y a n d THE JUDICATURE OF NEW ZEALAND 73 P et er A. C o r n fo r d D o c u m e n t THE EFFECTIVE REALIZATION AND PROTECTION OF CIVIL AND POLITICAL RIGHTS 87 D o c u m e n t MONTREAL STATEMENT of the ASSEMBLY FOR HUMAN RIGHTS 94 L u c ia n G. W eeram antry DIGEST OF JUDICIAL DECISIONS ON ASPECTS OF THE RULE OF LAW 113 BIBLIOGRAPHY OF HUMAN RIGHTS 151 INTERNATIONAL COMMISSION OF JURISTS - GENEVA International Commission of Jurists (ICJ) Geneva, Switzerland Signed contributions express the views of their authors; their publication by the Commission implies that they are thought to be of general interest by the Com­ mission which, however, does not necessarily endorse them in their entirety. Un­ signed contributions have, unless otherwise stated, been prepared by the staff of the Commission. Contributions dealing with international and comparative aspects of the Rule of Law will be considered for publication. They should be typed, submitted in duplicate and addressed to the Secretary-General at Geneva. Published twice yearly in English, French, German and Spanish and distributed by INTERNATIONAL COMMISSION OF JURISTS 2, quai du Cheval Blanc, Geneva, Switzerland THE PROMISE OF HUMAN RIGHTS YEAR This is the second part of a Special Human Rights Year Issue of the Journal. Like the first part (Volume VIII, No. 2), it contains a series of studies written by eminent lawyers from different parts of the world. The greatest service that the authors of the articles in these two volumes have done, is to demonstrate the fact that human rights are no longer a stray collection of moral principles which ought to influence the legislator. Every human right can be legally defined, interpreted and implemented; human rights now form a coherent body of law. While the Law of Human Rights deals with aspects of Constitutional and Criminal Law, Jurisprudence and International Law, it is itself a subject demanding comprehensive and separate study. In some universities it is a separate branch of law; this is a trend that needs encouragement. Since the publication of the first part of the Special Human Rights Year issue of the Journal in January 1968, three major international conferences on human rights have taken place. Two were non-governmental: the Geneva NGO Conference on Human Rights (29th - 31st January 1968), whose General Conclu­ sions were published in Bulletin No. 33 (March 1968), and the Montreal Assembly for Human Rights (22nd - 27th March 1968), whose Statement is published in this issue of the Journal. The Geneva NGO Conference consisted of 146 representatives of seventy-six international organisations interested in different aspects of human rights; it included representatives from all major non­ governmental organisations. The Montreal Assembly consisted of some fifty individual experts on human rights issues. Both conferences were representative of the different disciplines and were by no means limited to jurists: they were also representative of differing—and often conflicting—ideologies. These two conferences were representative of the non-governmental sector as a whole. Their conclusions, which were unanimous, and which coincided with each other, can be taken as representing world public opinion as distinct from governmental or bureaucratic opinion. The third major conference was the International Conference on Human Rights convened by the United Nations, held in Teheran (22nd April - 13th May 1968). It consisted of 391 governmental delegates representing 84 states. While Observers from a substantial number of non-governmental organisations attended the Teheran Conference, they were not allowed to address it; they were, however permitted to circulate written statements. Thus, the Conclusions of the Geneva and Montreal Conferences were circulated to the Teheran Conference. ' There was a very marked difference between the approach of the two non-governmental conferences and that of the governmental conference at Teheran. This difference epitomizes the growing conflict which has become apparent in recent years between the conservatism of most governments in regard to human rights and the importance and urgency which the non-governmental sector attaches to the more effective protection of human rights. It is a clear indication that public opinion is far in advance of the official governmental attitude. The two-non governmental conferences which were convened for the purpose of making available to the governmental conference at Teheran the considered and expert views of the non-governmental sector, not unnaturally concentrated on the question of providing effective implementation machinery for the protection of human rights and fundamental freedoms. They were only too conscious that twenty years after the adoption of the Universal Declaration of Human Rights, there was as yet, apart from the regional machinery provided by the Council of Europe and the Organisation of American States, no international machinery to which an individual or group of individuals whose rights had been infringed could turn for protection. They therefore urged that the important task was the setting up of implementation machinery at national, regional and international level—preferably of a judicial nature—that could afford some protection to the individual. Although representing widely differing disciplines and ideologies, the non-governmental conferences eschewed polemical discussions of the sharp problems that divided the world and got to grips with the task of recommending the setting up of implementation machinery. Unfortunately, the governmental conference never came to grips with the problem of implementation—despite the efforts of a few delegations. It devoted most of its time to a repetition of current political attitudes in emotive terms. An indication of the atmosphere may be had from the fact that for the first few days of the Conference no agreement could be reached even on the choice of the Conference Officers (Vice-Chairmen, Committee Chairmen and Rapporteurs); thus, from a working point of view, the two Committees of the Conference only began their work some six days after the opening of the Conference. Even then, the discussions were constantly side-tracked into polemics. It is possible that some delegations prolonged the polemical discussions so that the task of implementation could never be effectively reached. The final Proclamation o f Teheran reflects the failure of the Conference to make any real progress. It contains a series of unexceptional declarations which could have been written and accepted by _ everyone without any elaborate Conference. There is nothing new in it, and no indication that governments realise the urgency of providing effective international machinery for the protection of human rights. When the Conference terminated, some 18 resolutions, many of them dealing with implementation, had not been reached. A blanket resolution was then adopted inviting the Secretary General of the United Nations to transmit these resolutions to ‘ the competent organs of the United Nations for further consideration It is hoped that they will receive serious consideration ultimately. If the overall results of the Teheran Conference were disappoint­ ing, some useful work was done by it in regard to Women’s Rights, Apartheid, Education and Economic and Social Rights. In all, twenty-eight resolutions were adopted and some declaratory progress was registered in these fields. In one very important field,—the protection of human rights in armed conflicts—some concrete progress was made. A Resolution sponsored by India, Czechoslova­ kia, Jamaica, Uganda and the United Arab Republic was unanimously adopted (with two abstentions) drawing attention to the inadequacy of the existing humanitarian conventions both as regards their scope and effective application to the armed conflicts which disgrace our age. The resolution also calls for the conventional protection of the victims of racist and colonial regimes and the protection under international law of such victims who are imprisoned and for their treatment as prisoners of war or political prisoners under international law. In the operative portion of the Resolution, the Conference: 1. Requests the General Assembly to i nvite the Secretary General to study (a) Steps which could be taken to secure the better application of existing humanitarian international conventions and rules in all armed conflicts, and (b) The need for additional humanitarian international conventions or for possible revision of existing Conventions to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare.