Discrimination," International & Comparative Law Quarterly, vol. 15, p. 996, at p. 1057 (1966). On the Racial Convention generally, see Sohn & Buergenthal, supra note 3, 16. at p. 856. See Charles D. Ammoun, Study of Discrimination in Education, (UN Publ. Sales No. 57.XIV.3, 1957). 17. The UNESCO Recommendation against Discrimination in Education was adopted on December 11, 1960. UNESCO, Records of the General Conference, Eleventh Session, Paris, 1960, Resolutions, p. 123. 18. UNESCO Director-General, Activities of UNESCO in Connexion with the Promotion of Human Rights, UN Doc. A/Conf. 32/10, p. 38 (1968). 19. On the operation of this system, see id. at pp. 17-18. 20. The U.S., not being a party to the Convention, has to complete the reports relating to the Recommendation. For the very informative U.S. report, see U.S. Department of Health, Education and Welfare, United States Report to the Questionnaire on Implementation of the UNESCO Recommendation on Discrimination in Education: 1965-1971 (mimeo, Sept. 15, 1971). See UNESCO General Conference, Res. 31.1 of 17 November 1972, Records of the General Conference, 17th Sess., vol. I, pp. 154-55 (1972), UNESCO General Conference, Res. 35.1 of 20 November 1974, id., 18th Sess., vol. I, pp. 139-42 (1974). 21. 22. Women (1973). For an analysis of the Declaration, see U.N. Office of Public Information, Equal Rights for 23. United Nations Action on the Field of Human Rights, supra note 5, at p. 50. See, in this connection, the very valuable analysis of current international legal policies relating to sex-based discrimination by M. McDougal, H. Lasswell & L. Chen, “Human Rights for Women and World Public Opinion: The Outlawing of Sex-Based Discrimination," American Journal of International Law, vol. 69, p. 497 (1975). 24. See J. Klemesrud, "A Plan to Improve Status of Women Approved at Parley," New York Times, July 3, 1975, p. 1, col. 4. For excerpts from the text of the Action plan, see id. p. 8. 25. The treaties are reproduced in Human Rights: A Compilation of International Instruments of the United Nations, supra note 4. On the human rights work of the ILO, see C. W. Jenks, Human Rights and International Labour Standards (New York: Frederick A. Praeger, Inc., 1960); I.L.O. Director-General, The I.L.O. and Human Rights (Report presented by the International Labour Organization to the International Conference on Human Rights, 1968); E.A. Landy, The Effectiveness of International Supervision: Thirty Years of I.L.O. Experience (Dobbs Ferry, N.Y.: Oceana Publications Inc., 1966). 26. The texts of these treaties are reproduced in United Nations Treaty Series, vol. 75, 1950. 27. Generally on this subject, see United Nations Action in the Field of Human Rights, supra note 5, at pp. 110-17; A.H. Robertson, Human Rights in the World, pp. 162-184 (1972); J. Pictet, Humanitarian Law and the Protection of War Victims (Leyden: A.W. Sijthoff, 1975). Other works of interest are T. Farer, The Law of War 25 Years After Nuremberg (Int'l Conciliation, No. 583, 1971); and T. Taylor, Nuremberg and Vietnam: An American Tragedy (Chicago: Quadrangle Press, 1970). The U.S. Government codification of humanitarian law is found in U.S. Department of the Army, The Law of Land Warfare (Field Manual 27-10, 1956), which can be purchased from the U.S. Government Printing Office. CHAPTER FOUR International and Regional I. INTRODUCTION In the preceding chapter we discussed the major human rights instruments of the UN and UNESCO. Some of them, notably the Covenants, the Racial Convention and the UNESCO Convention against Discrimination in Education, provide for international controls designed either to monitor compliance by governments with their obligations under these instruments or to prod them into doing so. These controls consist for the most part of reporting procedures of one type or another. And, as we have seen, the few instruments that envisage some form of adjudication or mediation are either not yet in force or give only governments, but seldom individuals, the right to file complaints. But some more promising developments are also taking place. First, two regional organizations the Council of Europe and the Organization of American States-maintain permanent institutions for the protection of human rights. Second, the International Labor Organization - a specialized agency of the UN has developed an international machinery to protect trade union and worker rights. 1 Third, the UN recently established a formal procedure that makes it possible for individuals and private groups to bring complaints documenting allegations of large-scale violations of human rights to the attention of the UN. 1 These institutions and systems for the protection of human rights, particularly the regional systems, comprise the most advanced international human rights. machinery in existence today. Unless we study these systems, we cannot hope to understand what has thus far been achieved in the international human rights field, what is possible, and what remains to be done. Since space does not permit us to discuss all international and regional institutions and techniques for the protection of human rights, we shall attempt to describe only the European and inter-American systems, and the procedures for dealing with gross violations of human rights that the UN has developed in recent years. II. THE EUROPEAN CONVENTION OF HUMAN RIGHTS The European Convention of Human Rights is generally regarded as the most advanced international system for the protection of human rights in existence today. The Convention established a European Court of Human Rights and a European Commission of Human Rights. These institutions have the power to try and decide cases brought by individuals against governments, to award damages and to order governments to take appropriate remedial action. Approximately 500 complaints are received and decided annually by these bodies. The major opinions of the Court and Commission are published in the Yearbook of the European Convention on Human Rights; thus far eighteen volumes of this publication have been issued. 2 The European Convention of Human Rights is a treaty that was drawn up within the framework of the Council of Europe. The Council of Europe is a regional organization of democratic Western European countries which was established in 1949 to promote European unity. The following nations are members of the Council of Europe and parties to the European Convention of Human Rights: Austria, Belgium, Cyprus, Denmark, Federal Republic of Germany, France, Greece, Iceland, Ireland, Italy, Luxembourg, Malta, the Netherlands, Norway, Sweden, Switzerland, Turkey and the United Kingdom. 3 In adopting the Convention, as the preamble explains, these states resolved "as governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration [of Human Rights].' 4 The Convention entered into force in 1953. Since then five Protocols have been concluded which supplement the Convention by guaranteeing additional rights not included in the original instrument. A. Rights Guaranteed by the Convention The Convention guarantees the right to life, the right not to be tortured, or to be subjected to inhuman or degrading treatment. It outlaws slavery as well as arbitrary arrest and detention, and it proclaims the right to a fair and public trial. In addition to prohibiting ex post facto laws and penalties, the Convention protects the individual in his private and family life, it accords him freedom of thought, conscience and religion, freedom of expression, and the right to peaceful assembly. It assures to men and women of marriageable age the right to marry and found a family. The Protocols add the right to the peaceful enjoyment of one's possessions and the right to education. They contain a pledge by the Contracting Parties to hold free and secret elections, and they outlaw imprisonment for non-payment of contractual debts. The Protocols also guarantee the right of individuals to leave any country, including their own, and to enter the countries whose nationals they are. Pursuant to Article 14 of the Convention, which also applies to the Protocols, the enjoyment of all the rights enumerated in these instruments must be secured without discrimination based on "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Moreover, in Article 1 of the Convention, the Contracting States undertake to secure the rights it guarantees "to everyone within their jurisdiction." The Convention consequently protects all individuals in these countries, nationals and foreigners alike. This means, for example, that an American living in or visiting any of the countries. whose governments have ratified the Convention is protected by the Convention. 6 B. Enforcement of the Convention To ensure that the rights which the Convention guarantees are in fact enforced, the Convention establishes an international control system that consists of the European Commission of Human Rights and the European Court of Human Rights. The membership of the Commission is equal in size to the number of states that have ratified the Convention. Today the Commission consequently consists of 18 members. They serve in their individual capacity and not as representatives of any government. The Commission performs quasi-judicial, investigatory and conciliatory functions. It exercises these functions in two types of cases. The first are socalled inter-state complaints, that is, suits instituted by one State Party against another charging violation of the Convention. By ratifying the Convention, a state automatically recognizes the right of the Commission to deal with these cases. This is not true of the second category of cases, namely, individual petitions. Here the Convention provides that the Commission may only deal with an individual petition if the state against which the complaint is lodged has filed a separate declaration recognizing the right of private petition. Of the 18 States Parties to the Convention, 13 now recognize this right; only five countries - Cyprus, France, Greece, Malta, and Turkey — have thus far failed to do so. An individual petition charging one of these five countries with a violation of the Convention will consequently have to be dismissed by the Commission as inadmissible. But an inter-state communication containing the same charges will be admissible. In dealing with both individual and inter-state complaints, the Commission performs five specific tasks. First, it screens all complaints to determine whether they meet the various legal requirements prescribed by the Convention for their admissibility. Second, it investigates and examines the complaints that were ruled admissible. Third, if the facts ascertained by the Commission reveal that a violation of the Convention has taken place, the Commission attempts to negotiate a friendly settlement of the dispute. Fourth, if no settlement is reached, the Commission prepares a report containing its findings of fact and its legal conclusions. Fifth, in certain cases to be discussed below, the Commission may submit the dispute for final adjudication to the European Court of Human Rights. A dispute that has not been settled amicably by the Commission must be decided either by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe. The decisions of either of these bodies are final and legally binding on the States Parties to the dispute. 7 The Court consists of 18 judges. It has jurisdiction to decide only those cases that involve states which have recognized the jurisdiction of the Court. To date 14 out of the 18 States Parties to the Convention have done so; only Cyprus, Greece, Malta and Turkey have not recognized the jurisdiction of the Court. A dispute involving the remaining 14 states may be referred to the Court either by one of these states or by the Commission. Individuals do not, however, have the right to appeal their case directly to the Court; they have to go through the Commission or another state. Cases that have not or cannot be appealed to the Court must be decided by the Committee of Ministers of the Council of Europe. Unlike the Court and the Commission, the Committee of Ministers is a political organ consisting of the foreign ministers of the Member States of the Council of Europe. While as a matter of principle this is hardly a proper body to adjudicate violations of human rights, the Committee of Ministers has thus far nearly always accepted the findings and recommendations of the Commission. C. The Uniqueness of the Convention The Convention is unique among existing international arrangements for the protection of human rights in that it establishes an international procedure for impartial quasi-judicial (the Commission) and judicial (the Court) investigation and adjudication of claims by individuals alleging violations of human rights. Moreover, despite the applicable restrictions on the right of individuals to be heard by the Commission and the Court, the Convention system has worked surprisingly well. The restrictions that the Convention imposes on individual applications and on the jurisdiction of the Court are explained by the fact that even the democratic states of Western Europe were initially unwilling to conclude a treaty giving individuals an automatic right of appeal to an international tribunal. This reluctance to move too rapidly in yielding prerogatives of national sovereignty explains, of course, why the right of private petition to the Commission and the jurisdiction of the Court were made optional. It is most encouraging, however, that over the years such a significant majority of these states has subsequently voluntarily recognized the right of private petition and the jurisdiction of the Court. The Court and the Commission, although initially proceeding with considerable caution, have in the last decade vigorously and effectively discharged their responsibilities. The Court has on a number of occasions found governments guilty of violating the Convention and has c-dered them to pay damages to the individual claimants; these orders have been complied with in each instance. Among these countries were Austria, Belgium and the United Kingdom. The Commission has also negotiated friendly settlements with |