capacities, the states represented in ECOSOC found this proposal unacceptable and determined that the Commission be composed of government delegates. The individuals who serve on the Commission must as a result vote and act in accordance with the instructions of their governments rather than as impartial human rights experts.

Under a formula adopted by ECOSOC, the Commission currently consists of government representatives from the following geographic regions: eight members from African states, six from Asian states, six from Latin American states, eight from Western European and other states, and four from the socialist states of Eastern Europe. The U.S. and Canada are included in the "Western European and other states" group.

The terms of reference of the Commission, as originally approved by ECOSOC, read as follows:

The work of the Commission shall be directed towards submitting proposals, recommendations and reports to the Council [ECOSOC] regarding: (a) an international bill of rights;

(b) international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters;

(c) the protection of minorities;

(d) the prevention of discrimination on grounds of race, sex, language or religion;

(e) any other matter concerning human rights not covered by items (a), (b), (c) and (d). 20

This language, particularly subparagraph (e), was sufficiently broad to permit the Commission to submit to ECOSOC reports dealing with violations of human rights. But the Commission chose not to avail itself of this opportunity. Instead, it decided at its first session in 1947 that it lacked the power to act on complaints charging violations of human rights. ECOSOC ruled on this issue in Resolution 75(V) of August 5, 1947 by "approving" the Commission's conclusion that it "has no power to take any action in regard to any complaints concerning human rights." Resolution 75(V) was formally reaffirmed by ECOSOC Resolution 728F (XXVII) of July 30, 1959.

Until this policy was reversed a few years ago, the Commission proceeded on the assumption that it lacked the power to discuss any of the 20,000 to 30,000 complaints charging violations of human rights and pleas for help that are received annually by the UN. Instead, the Commission devoted most of its energies to drafting the Universal Declaration, the Covenants and other human rights instruments, and to reviewing the reports and studies of its SubCommission on Prevention of Discrimination and Protection of Minorities. While the Commission was performing these functions, numerous largescale violations of human rights were being committed in many parts of the world. From time to time some of these events would arouse public opinion sufficiently to prompt one or more governments to complain to the UN General

Assembly or Security Council. Among the complaints dealt with in this manner were the policies of racial discrimination and apartheid being practiced in South Africa and Rhodesia; Soviet slave labor camps; and the violations of human rights that occurred in Tibet, South Vietnam, Hungary, in various colonial territories, and during major civil and military conflicts.

Whether or not one believes that the actions of the UN General Assembly and Security Council had a beneficial effect in any of these cases, it is clear that they had important legal consequences. The ever-increasing number of human rights debates in and resolutions of the General Assembly and Security Council refuted the claim that human rights were within the domestic jurisdiction of the UN Member States and consequently could not be dealt with by the UN. 21

This was the very claim, of course, that had been consistently invoked in the UN Human Rights Commission to deny it the power to deal with human rights violations. As a matter of law this position became less and less tenable the more human rights complaints were discussed and voted on by the General Assembly and Security Council. For if domestic jurisdiction claims did not prevent the General Assembly and Security Council from dealing with these human rights violations, they could not provide a valid basis for barring the Human Rights Commission from dealing with the same violations. In any event, the domestic jurisdiction defense always lacked legal substance when invoked by a government that engaged in large-scale violations of human rights because such a government was in default of its international obligation "to promote universal respect for, and observance of, human rights and fundamental freedoms." (UN Charter, Arts. 55 & 56.) 22 The willingness of the General Assembly and Security Council to deal with these cases merely confirmed the view that the domestic jurisdiction clause of the UN Charter did not require the Commission to remain inactive. Interestingly enough, as early as 1949, the UN Secretary-General submitted a memorandum of law to the Commission demonstrating that the Commission had the power to deal with human rights complaints. But many of the states represented on the Commission, including the Soviet Union and the United States, were opposed to the assumption of that power by the Commission. 23

The involvement of the General Assembly and Security Council with human rights matters has intensified in the last fifteen years. In the years following the proclamation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was adopted by the General Assembly in 1960, 24 many new countries, particularly in Africa, gained their independence. They began to put increasing pressure on the UN to play a more active role in combatting the policies of racial discrimination and apartheid being practiced by white regimes in southern Africa. One of the consequences of this effort, which has also lead to numerous other UN anti-apartheid measures, 25 was an extensive reassessment of the powers of the UN Commission of Human Rights that began in the mid-1960's. 26 Some of its results are described below.

C. Procedures for Dealing with Gross Violations of Human Rights

In Resolution 2144A(XXI) of October 26, 1966, the General Assembly invited "the Economic and Social Council and the Commission on Human Rights to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to violations of human rights wherever they may occur." This resolution was followed by ECOSOC Resolution 1235 (XLII) of June 6, 1967. It reversed the Council's longstanding policy that the Commission lacked power to deal with human rights complaints. The resolution authorized the Commission to

make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid as practiced in the Republic of South Africa. . . [and] racial discrimination as practiced notably in Southern Rhodesia, and report, with recommendations thereon, to the Economic and Social Council.

The resolution specified that this study was to be undertaken by the Commission and its Sub-Commission on Prevention of Discrimination and Protection of Minorities, following an examination of "communications" received by the UN that revealed "gross violations of human rights and fundamental freedoms, as exemplified by the policy of apartheid . . . and racial discrimination" practiced in southern Africa.

There followed three years of inconclusive squabbling between the Human Rights Commission and the Sub-Commission on Prevention of Discrimination and Protection of Minorities. (The latter body, although a subsidiary organ of the Commission, is composed of twenty-six experts who serve in their personal capacity and, unlike the members of the Commission, are not government representatives.) The disagreement between these two bodies related to the interpretation of ECOSOC Resolution 1235 (XLII). A majority of the SubCommission construed it to apply to all "gross violations of human rights" wherever occurring. Various Afro-Asian states represented in the Commission, with the support of Soviet-bloc nations, sought to limit the application of the resolution to apartheid and racial discrimination in southern Africa, enabling them to condem white racism without taking comparable action against other gross violations of human rights.

The next important development came in 1970 when the Economic and Social Council adopted Resolution 1503 (XLVIII). It is worded in a less ambiguous manner than the 1967 resolution and seems to support the proposition that the Commission has the power to deal with any gross violations of human rights wherever committed and whoever the victims. What is even more important, the resolution establishes an institutional framework and procedures for dealing with such violations. Thus, almost twenty-five years after it was created, the UN Commission on Human Rights was finally authorized to do what it should have been doing all along.

1. Procedure for Dealing with Communications

66

ECOSOC Resolution 1503 establishes a multi-stage procedure for dealing with complaints by individuals and non-governmental organizations that 'appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms." The procedure consists of a preliminary screening by a five-member working group of the SubCommission on Prevention of Discrimination and Protection of Minorities. Its function is to refer to the Sub-Commission only those communications that reveal a consistent pattern of gross and reliably attested violations of human rights. The Sub-Commission reviews these findings and determines whether any of the cases should be referred to the Commission. The Commission, in turn, is empowered to undertake a "thorough study" of the situation or to order an "investigation" by an ad hoc committee followed, in either event, by a report to ECOSOC.

Resolution 1503 does not tell the Commission when to undertake a study or to order an investigation. It does provide, however, that an investigation may not be instituted without the permission of the state to be investigated. Since this permission will be granted only rarely, it would appear that not many investigations will be carried out pursuant to the provisions of Resolution 1503. But the Commission does not need permission to undertake a thorough study of a situation that appears to reveal a consistent pattern of gross and reliably attested violations of human rights. This then is the route that the Commission will have to follow in order to implement Resolution 1503. 2. Applying the New Procedure

27

A year after ECOSOC passed Resolution 1503, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted detailed rules of procedure for the submission and disposition of communications that appear to reveal a consistent pattern of gross violations of human rights. These procedures were applied for the first time in 1972, when a working group of the Sub-Commission screened more than 20,000 individual complaints and referred some of them to the Sub-Commission for further action. At two subsequent sessions, the Sub-Commission reviewed these cases and the comments it had solicited from the governments involved. Finally, in 1974, it referred some of them to the Commission.

29

28

Despite this action by the Sub-Commission, the Commission has thus far not proceeded against any state under the procedures provided for in Resolution 1503. Instead, it has in the past few years adopted various resolutions condemning the practices of some countries, notably South Africa, Portugal, Rhodesia, Israel and Chile. But in doing so, the Commission has studiously avoided invoking the Resolution 1503 procedures and has relied instead on the earlier ECOSOC and General Assembly resolutions. In 1975, however, the Commission did decide to establish a working group to review the findings of the Sub-Commission prior to each session of the Commission and to propose

how they should be dealt with. 30 It is to be hoped that this step will make it easier for the Commission to undertake a serious and orderly review of the findings of the Sub-Commission; this has not been done thus far.

31

It is obvious to all who have followed the work of the Commission over the years that many governments represented in that body and in the UN generally do not look with favor on the Resolution 1503 system, precisely because it enables individuals to bring conditions in these countries to the attention of the UN. They have therefore surrounded the system with numerous procedural obstacles and legal pitfalls, all designed to protect governmental interests and to effectively impede the ability of individuals and private groups to enforce governmental respect for human rights. 32 Among these obstacles is the rule of secrecy, which excludes individuals and their lawyers from participation in any of the proceedings before the Sub-Commission and Commission, and generally keeps them in the dark about all developments in the case.

All this notwithstanding however, as the Secretary-General of the International Commission of Jurists has correctly observed, "the advantage of the Resolution 1503 procedure is that it is the only procedure, universal in its application, for considering complaints by individual victims and by interested non-governmental organizations concerning violations of human rights. It is a tender plant, which needs careful nourishment." 33 There is also some evidence to suggest that the mere possibility of Commission action may have beneficial results. For example, a few days before the Sub-Commission was to look into a large number of complaints against the Greek military regime in 1973, Greece proclaimed an amnesty releasing many of the political prisoners who had filed the complaints. This action seemed to be designed to strengthen the argument of the military regime that the case should be dismissed. 34 If the Resolution 1503 system can have these and similar consequences, it certainly is worth preserving and developing.

V. CONCLUSION

Depending upon one's perspective, a partially filled glass of water is either half full or half empty. It is not much different when one attempts to assess existing international systems for the protection of human rights. On the one hand, it is readily apparent that we are dealing with relatively weak institutions lacking the power to compel uncooperative governments to respect human rights. It is also clear that many more such systems are required to start the work that needs to be done. On the other hand, the very fact that the systems described in this chapter exist and that they can point to some successes is an important achievement. Their existence testifies to the gradual, albeit slow and often grudging, recognition by governments that the international community has a legitimate interest in the manner in which governments treat human beings and in preventing governmental abuses that conflict with international

norms.

Many governments are still unwilling, of course, to accept the legitimacy of