[Department of State attachment to copies of the 1951 draft of the Human Rights Covenant-Publication 4307 or mimeographed copies-February 26, 1952], 1951 DRAFT OF THE UNITED NATIONS COVENANT ON HUMAN RIGHTS PRESENT STATUS 1. Attached is the working draft of the United Nations Human Rights Covenant as drawn up by the 1951 session of the Human Rights Commission. It contains articles both on civil and political rights and on social, economic, and cultural rights. These latter were included on the instructions of the 1950 United Nations General Assembly. 2. Subsequent to the 1951 session of the Human Rights Commission, the United Nations Economic and Social Council, on the basis of a proposal submitted by the United States and several other members, recommended that the 1951 United Nations General Assembly reconsider its 1950 decision and separate the draft covenant into two covenants, one to contain civil and political rights, and the other economic, social, and cultural rights. The General Assembly session which terminated in February 1952 followed the recommendation. As a result, whatever is retained, articles 3 to 18 of the 1951 draft presumably will appear in one covenant, and articles 19 to 32 in another covenant. 3. The draft is still tentative. It has never been voted on as a whole by any of the United Nations bodies concerned with it. The United Nations is still engaged in discussing what the substance of the covenant should be and in what form the substance should be expressed. After the United Nations has. approved the draft text in the General Assembly, a determination will then be made by the Government of the United States as to whether it should ratify the covenant. [From the Department of State Bulletin, June 25, 1951] ECONOMIC, SOCIAL, AND CULTURAL PROVISIONS IN THE HUMAN RIGHTS COVENANT REVISIONS OF THE 1951 SESSION OF THE COMMISSION ON HUMAN RIGHTS By James Simsarian1 The United Nations Commission on Human Rights, at the seventh session, which met at Geneva from April 16-May 19, 1951, drafted provisions on economic, social, and cultural rights for inclusion in the International Covenant on Human Rights.2 The Commission acted in accordance with the decision of the 1950 General Assembly that provisions on economic, social, and cultural rights should be included in the covenant. The Commission on Human Rights also revised the implementation machinery provided in the covenant with respect to the civil and political rights in the covenant. It did not have time, however, during the 5-weeks session to revise the other parts of the covenant. At the end of the 1951 session, the Commission forwarded the covenant to the members of the United Nations and to the specialized agencies for their comments before the Economic and Social Council considered it at its next meeting at Geneva on July 30, 1951. The Council will then submit the revised draft of the covenant to the General Assembly as requested by the General Assembly's resolution. 3 After the draft covenant is finally reviewed and revised, it will be opened for signature and ratification and will come into force, when 20 countries ratify it. The covenant is in contrast to the Universal Declaration of Human Rights (approved by the General Assembly at Paris on Dec. 10, 1948) since the declaration 1 Mr. Simsarian is assistant officer in charge of United Nations and Human Rights Affairs and also adviser to the United States representative on the Commission on Human Rights. For additional materials on human rights, see the following Bulletin references: An International Bill of Human Rights, by James P. Hendrick, February 15, 1948, p. 195; Progress Report on Human Rights, by James P. Hendrick, August 8, 1948, p. 159; United Nations Actions on Human Rights in 1948, by James Simsarian, January 2, 1949, p. 18; Human Rights; Draft Covenant Revised at Fifth Session of Commission on Human Rights, by James Simsarian, July 11, 1949, p. 3; Proposed Human Rights Covenant Revised at 1950 Session of Commission on Human Rights, by James Simsarian, June 12, 1950, p. 945. For the United States delegation, see Bulletin of April 23, 1951, p. 670. The General Assembly will convene at Paris the latter part of October or early in November 1951. was not drafted in the form of a treaty but as a declaration without legally binding force. The basic civil and political rights set forth in the draft covenant are well known in American tradition and law and relate to the right to life, protection against torture, slavery, forced labor, arbitrary arrest or detention, freedom to leave a country, freedom to return to one's country, right to a fair and public hearing by an independent and impartial tribunal, right to be presumed innocent until proved guilty, protection against ex post facto laws, right to recognition as a person before the law, freedom of religion, expression, assembly and association, and equal protection of the law. The Commission decided that the covenant on Human Rights should authorize only states to file complaints with respect to alleged violations of the covenant. The Commission rejected a proposal that individuals, groups, and nongovernmental organizations also be authorized to file complaints. The draft covenant on Human Rights now consists of 5 parts. Part I and II relate to civil and political rights, part III sets forth the economic, social, and cultural rights, part IV sets forth the complaint machinery, part V sets forth the new reporting requirements drafted at the 1951 session of the Commission, and part VI contains the federal state article, the territories article, and several procedural articles. In the new part III articles were drafted on most of the economic, social, and cultural rights enumerated in the Universal Declaration of Human Rights. The provisions of this part of the covenant relate to the opportunity to work, conditions of work, social security, housing, standard of living, health, maternity, motherhood, children, young persons, trade unions, education, culture, and science. In drafting such provisions, the Commission recognized that they differed in a number of respects from the civil and political provisions of the covenant. Those differences were acknowledged in the covenant in a number of ways: (1) The economic, social, and cultural rights were recognized as objectives to be achieved "progressively." In the case of the civil and political rights, states ratifying the covenant will be under an obligation to take necessary steps within a reasonable length of time to give effect to these rights. A much longer period of time is clearly contemplated under the covenant for the achievement of the economic, social, and cultural rights. The term "rights" is used with respect to both the civil and political provisions as well as the economic, social, and cultural provisions. This term is used, however, in two different senses. The civil and political rights are looked upon as "rights" to be given effect almost immediately. The economic, social, and cultural rights although recognized as "rights" are looked upon as objectives toward which states adhering to the covenant would undertake to strive. (2) It was recognized that the economic, social, and cultural rights were to be achieved by many means and methods, private as well as public, and not solely through legislation. Article 19 provides that States will take steps "with a view to achieving progressively the full realization of the rights recognized in this Part of the present Covenant." The phrase "with a view" was stressed as pointing to the achievement of conditions in a state whereby these rights could be secured through private action as well as governmental action. The obligation of a state ratifying the covenant will be to take steps for the promotion of conditions for economic, social, and cultural progress and development. The U. S. S. R. repeatedly urged that the economic, social, and cultural rights be stated in terms of state legislation only but the other members of the Commission rejected this approach. (3) Simple implementation arrangements were drafted for the economic, social, and cultural rights in contrast to the implementation machinery drafted for the civil and political rights. In the case of the civil and political rights, the implementation machinery established authorized one state to complain against another state if the latter was violating the covenant. There was wide sentiment in the Commission that this complaint procedure would not be appropriate for the economic, social, and cultural rights since these rights were to be achieved progressively, and the obligations of states with respect to these rights were not so precise as those with respect to the civil and political rights. The Commission wished to stress the importance of assisting states to achieve economic, social, and cultural progress rather than complaint against states. Accordingly, a procedure was devised whereby states would furnish reports concerning the progress made in the observance of the economic, social, and cultural rights set forth in the covenant. (4) The economic, social, and cultural rights were necessarily drafted in broad terms as contrasted to the provisions on civil and political rights. It was felt in the Commission that since these rights were stated in terms of broad objectives, general language would be adequate. For example, article 22 simply provides that "The States Parties to the covenant recognize the right of everyone to social security." In view of the many differences recognized by the Commission in drafting part III of the covenant on economic, social, and cultural rights as contrasted to parts I and II on civil and political rights, India urged at the end of the 1951 session that the General Assembly be requested to reconsider the decision that economic, social, and cultural rights should be included in the same covenant with civil and political rights. The Indian representative proposed that the civil and political rights constitute one covenant and that the provisions on economic, social, and cultural rights be set forth in a separate one. This proposal was, however, rejected by a vote of 5-12, with 1 abstention. Countries voting to reject this proposal recognized the different character of the economic, social, and cultural rights as contrasted to the civil and political rights in the covenant but vigorously pressed the view that such provisions should be contained in the same covenant with the provisions on civil and political rights. This attitude was the same as that expressed in the 1950 General Assembly. The United States favored the separation of the two fields into two covenants in both the 1950 session of the General Assembly and the 1951 session of the Commission on Human Rights but was in a minority in both organs of the United Nations on this point. Underdeveloped countries in particular expressed the view that it was important that the economic, social, and cultural rights be contained in the same covenant with the civil and political rights to stress the equal importance of these two fields. A separation of the two, it was felt, would indicate the lesser importance of the economic, social, and cultural rights. The Commission adopted article 32 to recognize that such of the economic, social, and cultural rights as are provided by a state ratifying the covenant may be subjected by the state to certain limitations if necessary for the purpose of promoting the general welfare in a democratic society. The United States urged the inclusion of this provision in the covenant to make it clear that the economic, social, and cultural rights recognized would not be absolute but subject to reasonable limitations. In the case of social security, for example, it is sometimes necessary to condition disability benefits payable to disabled workers on their willingness to take vocational rehabilitation courses. Representatives of the International Labor Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the World Health Organization (WHO) participated in the drafting of the provisions on economic, social, and cultural rights in the Commission. The Director Generals of the three organizations attended some of the meetings, David Morse, Dr. Torres Bodet, and Dr. Brock Chisholm, respectively. In addition, the ILO was represented by a tripartite delegation from the Governing Body of the International Labor Office consisting of Sir Guildhaume Myrrdin-Evans, representing the government group, Leon Jouhaux, representing the workers, Gustav Bergenstrom, representing the employers. ARTICLES ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS The following is a brief discussion of each of the economic, social, and cultural articles adopted by the Commission of Human Rights for inclusion in part III of the draft covenant. Right to work The first article considered in the field of economic, social, and cultural rights was the right to work. The U. S. S. R. proposed that this article read as follows: "The State shall ensure to everyone the right to work and a choice of profession, with the object of creating conditions which will remove the threat of death by hunger or by inanition." This proposal was rejected by a vote of 10-2, with 6 abstentions. Instead, the Commission adopted the following as article 20 by a vote of 16-0, with 2 abstentions (U. S. S. R. and Ukraine): "Work being at the basis of all human endeavor, the State Parties to the Covenant recognize the right to work, that is to say, the fundamental right of everyone to the opportunity, if he so desires, to gain his living by work which he freely accepts." Most of the members of the Commission and especially the United States representative were particularly anxious to counteract any concept of compulsion, i.e., forced labor, in the phrase "right to work." The Commission accordingly voted to include the phrase "if he so desires" and the word “freely" to stress the noncompulsory character of this provision. The U. S. S. R. asked for a separate vote on the inclusion of the phrase "if he so desires," but the effort to exclude this phrase was unsuccessful. The Commission rejected the initial Soviet proposal particularly because it gave unwarranted stress to the role of the state. The language adopted by the Commission is in terms of the recognition of the right of everyone, if he so desires, to gain his living by work which he freely accepts. Conditions of work Article 21 recognizes the right of everyone to just and favorable conditions of work, stressing safe and healthy working conditions, fair wages, equal pay for equal work and reasonable limitation of working hours, and periodic holidays with pay. The ILO urged that the language utilized in this article be as general as possible since detailed conventions on various aspects of this subject are being developed separately in that organization. Social security The following U. S. S. R. proposal was rejected: "Social security and social insurance for workers and salaried employees shall be provided at the expense of the State or of the employer, in accordance with each country's legislation." The Commission decided instead to provide simply in article 22 that the states parties to the covenant recognize the right of everyone to social security. The ILO again urged that general language be used since a number of conventions in the field of social security are being developed in that organization. Housing The following U. S. S. R. proposal was rejected: "The State shall take all the necessary steps, especially legislative measures, to ensure to everyone living accommodation worthy of man." Instead, the Commission adopted article 23 providing that "States Parties to the Covenant recognize the right of everyone to adequate housing." Standard of living This article 24 was adopted to recognize the right of everyone to an adequate standard of living and the continuous improvement of living conditions. Health The WHO representative urged that provisions in the covenant on the right to health be couched in terms identical with those used in the Constitution of the organization, especially since they have been recognized by the 75 members of that organization. The first sentence of this article 25 was accordingly adopted to provide: "The States Parties to the Covenant recognize the right of everyone to the enjoyment of the highest standard of health obtainable." The United States supported this language, but objected to the inclusion of the second sentence of this article which provides: "With a view to implementing and safeguarding this right each State party hereto undertakes to provide legislative measures to promote and protect health.” The United States in opposing this sentence pointed out that it mentioned only legislative measures for the promotion and protection of health and that obviously the promotion and protection of health should be achieved through private means and methods also and not solely through legislation. This sentence was, however, adopted. It was recognized at the same time by the Commission that in approving this provision, it would be subject to review later in the light of the over-all general promotional article expected to be adopted with respect to all the provisions on economic, social, and cultural rights in the covenant. The over-all general promotional article (later adopted as art. 19) is not limited to legislation for the achievement of the objectives set forth in the field of economic, social, and cultural rights. The Commission, however, did not have time to review the various articles and to eliminate inconsistencies. Accordingly, the second sentence of article 25 was not eliminated at this session. It is anticipated that, in the further review of the provisions of the covenant, the United States will urge that this inconsistency be corrected and that the second sentence of article 25 be eliminated. Maternity, motherhood, and children This article 26 was adopted to recognize (1) that special protection should be accorded to maternity and motherhood and (2) that special measures of protection should be taken on behalf of children and young persons and that in particular they should not be required to do work likely to hamper their normal development. Trade-unions Although under article 16 of the draft covenant the right of association is already recognized, the Commission decided to include a separate provision on trade-union rights under article 27 to recognize expressly the right of everyone to form and join local, national, and international trade-unions of his choice for the protection of his economic and social interests. The Commission decided to omit any reference to the right to strike in this article. Several attempts were made to include the right to strike subject to certain limitations. It was felt, however, that to include such provision with the limitations proposed would be too restrictive. For example, Uruguay proposed the following text, which was rejected: "It shall be understood that the right to strike is restricted to circumstances where attempts at conciliation have been exhausted. In the same way, the right to strike may be restricted by legislative measures in the case of public officials," Education The first seven paragraphs of article 28 on education were adopted on the recommendation of UNESCO representatives. Paragraphs 3 and 4 provide for compulsory primary education to be free and for secondary education to be progressively free. Paragraph 5 provides that higher education should also be made progressively free and equally accessible to all on the basis of merit. Paragraph 6 calls for fundamental education for adults who have not received or completed their primary education. Paragraph 8 recognizes that the obligations of states to establish a system of free compulsory primary education should not be deemed incompatible with the liberty of parents to choose for their children schools other than those established by the state provided that they conform to minimum standards laid down by the state. Paragraph 9 provides that in the exercise of any functions which the state assumes in the field of education it should have respect for the liberty of parents to insure the religious education of their children in conformity with their own convictions. Under article 29, each state would agree to work out and adopt a detailed plan of action within 2 years after adherence to the covenant for the progressive implementation of the principle of free, compulsory primary education if, at the time it adheres to the covenant, it has not already done so. Culture and science Article 30 was adopted to recognize the right of everyone to take part in cultural life and to enjoy the benefits of scientific progress. The proposal of UNESCO to include a provision on copyright was rejected by the Commission. It provided for the right of everyone "to obtain protection for his moral and material interests resulting from any scientific or artistic production of which he is the author." The Commission felt that this was a technical subject more appropriate for consideration in a separate convention than for inclusion in the Covenant on Human Rights. Equality of men and women In accordance with the General Assembly resolution, the Commission included article 31 in part III of the covenant to recognize the equal right of men and women to the enjoyment of all economic, social, and cultural rights, particularly those set forth in the covenant. Property The United States proposed that an article be included in the covenant recognizing the right of everyone to own property. The Commission decided for the present, however, not to include such an article. At the end of the session, the |