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The Influence of the Universal Declaration of Human Rights on International and National Law

Published online by Cambridge University Press:  27 February 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Division of Human Rights, United Nations Secretariat
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Type
Fourth Session
Information
Proceedings of the American Society of International Law at its annual meeting (1921-1969) , Volume 53 , 1959 , pp. 217 - 229
Copyright
Copyright © American Society of International Law 1959

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References

1 [1950] I.C.J. Rep. 18.

2 Lauterpacht (The Development of International Law by the International Court 134–135 (London, 1958)) says that the view expressed by Judge Alvarez in the competence of Assembly case and, in particular, in his dissenting opinion in Beservations to the Convention on Genocide, Advisory Opinion, [1951] I.C.J. Bep. 53, “is jurisprudentially unsound and contradicted by the language and the substance of almost every pronouncement of the International Court of Justice, of its predecessor, and, indeed, of international tribunals generally.”

3 “The right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who have power to modify or suppress it.” Question of Jaworzina (Polish-Czechoslovakia frontier), Advisory Opinion of the P.O.I.J., 1923, Series C, No. 8, p. 37. As far as the TJ.N. Charter is concerned, the General Assembly alone is not this “person or body.” The power to amend and therefore to give an authentic interpretation of the Charter is vested in the General Assembly (Art. 108) or the General Conference (Art. 109), but only together with the ratifying authorities of two thirds of the States Members of the Organization, including all the permanent Members of the Security Council.

4 Examples of provisions where the Declaration is ahead of its, and our, time, are those setting forth everyone's right to a nationality (Art. 15) or the right to seek, receive and impart information and ideas regardless of frontiers (Art. 19).

5 Clark and Sohn, World Peace through World Law, Annex VII at p. 351 (Cambridge, Mass., 1958). For a review of the literature, see Nehemiah Bobinson, The Universal Declaration of Human Rights. Its Origin, Significance, Application and Interpretation (New York, 1958).

6 McDougal and Lasswell, 53 A.J.I.L. 9 (1959).

7 John P. Humphrey, “Human Rights: New Directions in the United Nations Programme,” New York Law Forum, October, 1958.

8 U.N. Docs. S/3301, S/3305; 31 Dept. of State Bulletin 556 (1954); Cmd. 9288; Schwelb, “The Trieste Settlement and Human Rights,” 49 A.J.I.L. 240 (1955).

9 1955 United Nations Yearbook on Human Rights 340, 342. Art. 5 of the General Convention and Art. 18 of the Convention on the Status of Individuals, both of June 3 1955. When, in 1956, Trance recognized the independence of Tunisia, the Protocol of Agreement (51 A.J.I.L. 683 (1957)) did not repeal the Conventions of 1955 in their entirety. It provided that those of their provisions which are inconsistent with the new Btatus of Tunisia as an independent and sovereign state shall be modified or abrogated.

10 Paul You, author of a monograph on the subject, Le Préambule des Traités Internationaux (Fribourg, 1941), has listed a great number of such instances, from the Treaty of Paris of May 30, 1814, up to the time before the outbreak of the second World War. More recent illustrations of the proposition that it is very often immaterial where a particular provision is put, whether in the preamble or in the “operative articles,” are the various Peace Treaties by which the second World War was concluded. Following the technique of the Peace Treaties of 1919–1923, the Peace Treaties of 1947 with Italy, Eumania, Hungary, Bulgaria and Finland expressed the cessation of the state of war in the preambles. In the Peace Treaty with Japan of 1951, on the other hand, the termination of the state of war is expressed in Art. 1. In the Peace Treaties of 1947 and 1951 and in the State Treaty with Austria of 1955, the promise to support the application for admission to the United Nations appears in the preamble; in the Soviet-Japanese Peace Declaration of Oct. 20, 1956, the support by the U.S.S.E. for Japan's demand for admission to membership of the United Nations is expressed in operative sec. 4 (Soviet-Japanese Peace Declaration, Moscow Oct. 19, 1956, New York Times, Oct. 20, 1956). For the special case of the preamble of the Charter, see U.N. Conference on International Organization, Vol. 6, pp. 387 388 [Committee 1/1] and Vol. 17, p. 435 [Coordination Committee].

11 In the preamble to the Political Rights Convention the states parties recognize that everyone has a right (to take part in the government of his country, etc.). In the Nationality Convention they only recognize that in the Universal Declaration of Human Rights the General Assembly has proclaimed the right (to a nationality).

12 Conference for the Conclusion and Signature of the Treaty of Peace with Japan. San Francisco, California, September 4–8, 1951. Record of Proceedings (Department of State Pub. 5392, Int. Org. and Conf. Ser. I I , Par Eastern 3) 51, 77,115, 116, 209, 225.

13 Japanese Peace Treaty and other Treaties Relating to Security in the Pacific, Hearings before the Senate Committee on Foreign Relations, 82nd Congress, quoted in James F. Green, The United Nations and Human Rights 60 (Washington, 1956).

14 Contemporary Japan, A Review of Far Eastern Affairs, Vol. XX, July-Sept., 1951, p. 423.

15 Loc. cit. note 6, pp. 5 and 13.

16 1951 Yearbook on Human Rights 226; 1952 ibid. 62.

17 For other examples see The Universal Declaration of Human Rights. A Standard of Achievement (U.N. Pub. No. 58.1.22); also Schwelb in 8 Archiv des Völkerrechts 16 (1959).

18 U.N. Doc. S/4122.

19 Journal Officiel de la République française, of Aug. 26, 1956, Decree No. 56–847; Journal officiel du Togo of Aug. 30, 1956; reproduced and commented upon in the Report of the U.N. Commission on Togoland under French Administration, Doc. T/1343, Trusteeship Council, 7th Spec. Sess., Official Eecords, Sept., 1957, Supp. No. 2; also Doc. A/3677.

20 For explanations of these provisions given to the TJ.N. Commission on Togoland under French Administration and to the Trusteeship Council, see Doc. T/1343, pars. 149 et seq., 155 and 164, and T/SE.841, pars. 14 and 18.

21 Art. 1 of the new Statute enacted by Decree No. 58–187 of Feb. 22, 1958; see also Eeport of the TT.N. Commissioner for the Supervision of the Elections in Togoland under French Administration, T/1392, pars. 19 and 22.

22 Decree No. 57–301 in Journal Officiel de la Bepublique franchise of April 18, 1957, Vol. 89, No. 92.

23 Ordinance No. 58–1375 of Dec. 30, 1958, establishing the Statute of the Cameroons; Annex II to the Eeport of the U.N. Visiting Mission to Trust Territories in West Africa, 1958, T/1427, Art. 5.

24 6 Entscheidungen des Bundesverfassungsgerichts 55 et seq. (1957) (1 BvL 4/54).

25 Deutsches Verwaltungsblatt (1957), p. 57 (Nr. B Verw. G.I.C. 58.56); see Golsong in 33 British Year Book of International Law 317 et seq. (1957).

26 Kommentar zum Bonner Grundgesetz (Bonner Kommentar), Art. 16 (Wernicke) p. 2.

27 U.N. Docs. A/CONF.9/SB.12 to 14.

28 72 Harvard Law Review 837 (1959).

29 217 Pac. 2d 481, 488 (1950); 218 Pae. 2d 595 (1950), 242 Pac. 2d 617.

30 335 U. S. 551; 93 Law Ed. 229 (note 5).

31 101 N.Y.S. 2d 461 (1950).

32 Public Prosecutor v. F.A.v.A., 1951 Yearbook on Human Rights 251–252.

33 In re Pietras, Civil Court at Courtrai, Pirst Chamber (1951), 1951 Yearbook on Human Rights 15; in re Jacqueline-Marie Bukowicz, same court, 1952, 1953 Yearbook on Human Rights 21.

34 Court of Taranto, Giurisprudenza Italiana, 1954, first part, II, 573, 1954 Yearbook on Human Rights 169–171.

35 Court of First Instance of Courtrai, Order of June 10, 1954, 1954 Yearbook on Human Rights 21.

36 Borovsky v. Commissioner of Immigration and Director of Prisons, and Chirskoff v. Commissioner of Immigration and Director of Prisons, 1951 Yearbook on Human Rights 287–288.

37 Judge Azevedo in the Colombian-Peruvian Asylum Case, Judgment of Nov. 20, 1950, [1950] I.C.J. Bep. 339; Judge Levi Carneiro in the Anglo-Iranian Oil Case (jurisdiction), Judgment of July 22, 1952, [1952] I.C.J. Rep. 168, and Judge Ad Hoc Guggenheim in Nottebohm Case (Second Phase), Judgment of April 6, 1955, [1955] I.C.J. Rep. 63.

38 Lauterpacht, Development of International Law by the International Court 7.

39 U.N. Docs. E/2970, pars. 206 to 214; E/3229, pars. 52 to 74.

40 U.N. Doc. E/L.824.

41 U.N. Docs. E/2844, pars. 98 to 100; E/3229, pars. 104 to 197.

42 Sereni, 53 A.J.I.L. 208 (1959).

43 Savigny, Ueber den Beruf unserer Zeit zur Gesetzgebung und zur Bechtswissenschaft (1814), On the Vocation of Our Age for Legislation and Jurisprudence (trans. Hayward, 1831).