Putting the Great Enterprise into Context
John P. Pace
- Civil and political rights — Development, right to — Regional co-operation — Natural resources — International humanitarian law — Sovereignty — Vienna Convention on the Law of Treaties
Ladies and Gentlemen,
Do not measure the importance of your commission on the basis of its present dimensions. We are only at the starting point of a very great enterprise, the volume of which and the action of which will have to grow, day after day. You are the seed out of which great and beautiful harvests must come.
On the afternoon of Monday 29 April 1946, the United Nations, as part of the process of setting itself up, brought together a small group of persons to seek their recommendations as to the nature and form of a Commission on Human Rights, as envisaged in the Charter of the United Nations. The Charter, adopted in San Francisco in June 1945, had come into effect only a few months earlier, on 24 October 1945.
Henri Laugier convened that meeting.1 He was Assistant Secretary-General for Social Affairs under Secretary-General Trygve Lie, who had taken office on 2 February of that year. The words quoted above are from his welcoming address to the six persons in that group.2
(p. 2) This work describes the development of the ‘very great enterprise’ as it evolved from that day on in order to assist its further evolution towards the achievement of its purpose. There may never be a utopia, but there can be a much smaller gap between rhetoric and reality. We can shape the future better if we know and understand the past.
The objective of this book is to provide a comprehensive account of the UN’s treatment of human rights through the lens of the Commission on Human Rights, tracing the various issues taken up and their vicissitudes. It attempts to provide an insight into their trajectory over the decades since the United Nations was founded, a basis upon which future efforts will get us closer to the realization of the Charter’s objective,
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.3
Although in the decades that I have been involved in the process, the level of awareness has grown and institutions have abounded, not much has changed for the victims of human rights abuses, in both the political and the economic spheres.
The Charter’s objective, ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’, has yet to be fulfilled. The nature of war has changed, and mankind continues to suffer ‘untold sorrow’. The great enterprise, therefore, has yet to fulfil its objective, the search for which will continue. The institutions and procedures that have been established over the decades will hopefully assist this process. In 2015, the Human Rights Council issued a President’s statement on the seventieth anniversary of the end of the Second World War, where it ‘underline[d] the progress made since the end of the Second World War in overcoming its legacy and in promoting (p. 3) reconciliation, international and regional cooperation and democratic values, human rights and fundamental freedoms, in particular through the United Nations, and the establishment of regional and sub-regional and other appropriate frameworks’.4 This book is intended to assist in assessing that statement.
I started my career with the United Nations on 3 January 1966. International human rights law did not exist—with the exception of the Universal Declaration of Human Rights and the Genocide Convention, both adopted in 1948. Since its establishment in 1919, the International Labour Organization had developed international labour law.
I witnessed the institutions and procedures as they developed into the system that exists today, as the original intention of drafting international law was outpaced by the decision to undertake ad hoc investigations as of the late 1960s and then, starting in the 1980s, the emergence of the body of international human rights law. These two systems, in turn led to what became technical cooperation, first on a bilateral basis, and then as part of the development system and peacekeeping operations and other operations of the Security Council. A breakthrough took place in the late 1990s, when the notion of corporate social responsibility was injected into the human rights programme.
The embryo of this evolution of the ‘very great enterprise’, introduced in the 1945 amendments to the draft Charter, produced the Commission on Human Rights in 1946, set up to prepare the International Bill of Human Rights. The International Bill took a very long time to come into existence—more than thirty years—and as a result, as of the mid-1960s, as the configuration of the membership of the United Nations expanded and diversified, ad hoc measures were taken to address human rights issues. This brought about the system of special procedures, so that by the mid-1960s, two systems were emerging, one based on conventions and the other on ad hoc inquiries. These in turn produced the need to enhance awareness of and to strengthen these institutions, and by the late 1980s, technical assistance emerged as the third sector of human rights activity. This contributed to the shaping of bilateral assistance programmes and the setting up of regional and field offices to support such programmes.
As the evolution continued, so did its content as focus on issues such as the right to development, to a safe environment and to business and human rights emerged. Institutionally, as of the 1990s, reforms were introduced by Secretary-General Kofi Annan which introduced human rights into the activities of the UN system.
This work is based on the official record of the Commission on Human Rights starting in 1944 with the Dumbarton Oaks Conversations. The Commission was formally established in June 1946 and it was to continue until 16 June 2006,5 when it was replaced by the Human Rights Council. In the sixty years of its existence, the Commission was the forum where the United Nations focused its human rights activity. I served the United Nations during thirty-three of those sixty years. During sixteen of them, I was Secretary to the Commission.
I was recruited by John Humphrey, the first Director of the Division, Secretary of the Commission with Eleanor Roosevelt as its Chairman and I started my career at the UN Division of Human Rights on 3 January 1966.
(p. 4) In the late 1970s, I too was to become Secretary of the Commission. I was fortunate to work under John Humphrey, an icon credited with the first draft of the Universal Declaration of Human Rights and the monumental challenges faced in the drafting of the Covenants. As Director of the Division of Human Rights, he was at the heart of the drafting of the International Bill of Human Rights.
I belonged to the succeeding generation, to an era dedicated to the search for means of implementation, of translating the legacy of John Humphrey’s generation into reality. In later years we met from time to time; he sat on the Sub-Commission on Prevention of Discrimination and Protection of Minorities for a number of years. In 1989 I had the privilege to interview him at some length on the formative years of the International Bill of Human rights, a factor that influenced the decision to write this book.
During the thirty-three years of my service in the United Nations I witnessed an evolution that I attempt to describe in this work in the hope that it will assist our successors in their responsibility for the further development of that Great Enterprise launched in April 1946. Much of the content of this work brought a sense of déjà vu as I was putting it together.
From the late 1970s, I was given responsibility for various sectors. I was in charge of the Special Procedures during the first ten years of their existence; this took me to countries where I saw for myself the despair and horror of communities affected by human rights violations. We were not always able to access places that we had aimed for, largely because of security considerations, not always genuinely justified. This made it necessary to develop systems of monitoring information which later, with the arrival of information technology in the late 1980s, it was possible to apply to better use in supporting the various mandates we were given.
Later, I headed the research sector and then the technical cooperation programme in its infancy.
I was Secretary to the Commission for sixteen years, possibly, in hindsight, a ‘golden era’ when the Commission developed the treaties, the procedures and the programmes that still hold good today and with them, the challenges that still face us. Participation at the Commission went from a few hundred in the late 1970s to a few thousand in the early 1990s; I consider myself very fortunate to have had this unique opportunity to see—and work with—the international community with all its differences in attitudes to the responsibility which respect for human rights obligations entail.
In the early 1990s I coordinated the World Conference on Human Rights, which took place in Vienna in 1993—another unprecedented historic event.
The heritage of John Humphrey and his generation, many of whom were still members of the Commission and the Sub-Commission on Prevention of Discrimination and Protection of Minorities in my early years (eg René Cassin and Hernán Santa Cruz and José Inglés come to mind) provided my generation with a foundation on which to build.
The year that I started my career in the Division of Human Rights, the General Assembly adopted the two Covenants and opened them for signature and ratification. The original mandate for the drafting of a Covenant6 was radically altered when the Assembly gave its consent to separate the Covenant into two sets of norms, thereby altering the original request of the General Assembly for the drafting of a unitary document to complete the (p. 5) International Bill of Human Rights.7 The consequences of the separation of the rights embodied in the Universal Declaration into two sets—reluctantly agreed to by the General Assembly in 19528—changed the unitary or holistic character of human rights and instead created two distinct areas when there should never have been any distinction. In spite of the reassuring rhetoric reaffirming their indivisibility and inter-dependence over the following decades, civil and political rights remained distinct from economic, social and cultural rights, creating a division that no rhetoric could heal.
The foundations laid during the twenty years that John Humphrey headed the Division of Human Rights enabled our generation to face the developments in the decades that followed. The work of the Commission had been affected by the Cold War but soon decolonization changed the make-up of the United Nations, and the non-Aligned Movement came into being. This led to expansion in the work of the Commission, characterized by the milestone decision in 19679 to launch ad hoc investigations into specific countries and situations and an era of activity during which ad hoc procedures were developed.
Soon thereafter, standard-setting gained momentum as the first specialized treaties came into effect and their monitoring bodies started to function. These two developments led to the revival of Advisory Services, launched in the mid-1950s, adapted to the needs of the emerging conventional system, and to the recommendations of the special procedures, aimed at preventing—as distinct from investigating—human rights violations.
It took ten years for the Covenants to enter into force. In the meantime, new nations emerging from the post-Second World War decolonization, impatient and not ready to wait for a formal international human rights legal regime, pushed for the creation of an ad hoc inquiry procedure into particular situations, starting with southern Africa in 1967. These soon became known as special procedures, as other situations became the subject of such inquiries, notably the occupation of Palestinian territory by Israel in the 1967 war and its ensuing attempts to annex territory that it had occupied, and the situation in Chile resulting from the military putsch of September 1973.
The drafting of international human rights law gained momentum as the Covenants and the treaty bodies that monitored compliance started to function, and the 1970s and 1980s witnessed a dramatic burst of activity on both conventional and extra-conventional action. The Convention Against Torture and the Convention on the Rights of the Child came into being during this period.
The 1980s saw the emergence of the core conventions (complemented in the early 2000s by the Disabilities Convention and the Disappearances Convention) and the focus on enhancing human rights awareness and education at all levels and in specialized sectors of society (such as in the administration of justice) and on encouraging the setting up of regional and national institutions for the promotion and protection of human rights around the world.
(p. 6) This activity highlighted the need for greater awareness and familiarity of these institutions and their procedures and, more generally, of the need to enhance awareness among affected sectors of society. Hence the emergence of the next phase, where the focus shifted to measures of prevention—as distinct from protection, which had been the main focus until then—and the creation of the Voluntary Fund for Technical Cooperation from which activities were developed to support the work of the treaty system, as well as to address particular needs that were defined, largely as a consequence of the extra-conventional investigations. The establishment of the Voluntary Fund dramatically widened the nature and scope of the human rights programme. It also acted as the catalyst for the opening to education and training in human rights and the preparation of materials to support them.10
As the 1980s came to an end, the Assembly decided to convene a World Conference on Human Rights, the second in the history of the United Nations.
In all these developments, civil society played a crucial role; its contribution was vital to the work of standard-setting, investigation and follow-up. The role of civil society throughout the years of preparation of the World Conference, both in the regional meetings and in Vienna, was a determinant of the outcome of the Conference, which is acknowledged as setting the agenda for the Great Enterprise as it is known today. I was assigned to coordinate the Conference, and for three years, together with my team, we were involved, directly and indirectly, in a wide range of activities conducted world-wide, including inter-governmental and civil society meetings and activities. Among these were the milestone meetings in Tunis for the African region in November 1992, in San José, Costa Rica for the Latin American and Caribbean countries in January 1993 and the historic, first ever inter-governmental meeting in Asia with a human rights agenda in Bangkok in March/April 1993.
The post of High Commissioner for Human Rights was established in December 1993, and soon thereafter, the Office of the High Commissioner for Human Rights. I was assigned responsibility of a new area—originally named Research and Analysis, subsequently renamed Research and Right to Development—intended to provide substantive cohesion and advice drawing on experiences recorded by the other sectors of the Office, principally the treaty and special procedures on one hand, and the advisory services and technical cooperation areas on the other. With the establishment of a High Commissioner and the reforms of Kofi Annan, human rights were gradually injected into the rest of the United Nations system, a process that coincided with the introduction of what became field operations. This was the early 1990s, the time of the break-up of Yugoslavia, the Rwanda genocide and the transition in Cambodia, when human rights became an active participant in UN operations.
It was also the time when the UN Development Programme introduced the Development Assistance Framework (UNDAF) and the notion of Human Development with its first Human Development Report in 1990. The World Bank had introduced its Comprehensive Development Framework (CDF) around the same time. In 1996, the High Commissioner (José Ayala Lasso) met the President of the World Bank (James Wolfensohn), to seek ways for closer coordination of human rights issues in the World Bank’s programmes.
(p. 7) In the last months of my career at the United Nations, came the ground-breaking initiative of Kofi Annan at the World Economic Forum in Davos in 1999, when he reached out to the business world, leading to the Global Compact.
My last day at the United Nations was 30 September 1999. The same year, I moved to Australia where I was welcomed at the University of New South Wales. Soon, I found myself once again in the throes of human rights issues in various countries including Indonesia, Iraq, Lebanon, Liberia and Timor-Leste. In addition, my work included teaching several different groups of people who work face to face with the human rights realities surrounding them, the cultural, economic, political and social realities of their everyday life.
It was during this period that I decided to develop this book; the exposure to the realities of Iraq, Nauru, Cambodia, Indonesia, Nepal, Timor-Leste, to mention some, was consistent with the earlier experiences in Chile, southern Africa, Palestine and Afghanistan. More precisely, the major trigger were the waves of people seeking a better life—from conflict, poverty or pure social injustice. This triggered the need for a comprehensive account that would hopefully restore the usefulness of the international human rights system.
The delicacy of my task was to reconcile the inevitable reaction of frustration at the lack of ‘progress’ with the hopes and noble objectives of the human rights system. There was no better way than to let the historic and actual reality speak for itself. Hence the approach taken in this book.
One may ask—as often one does—what is the point of all this if, with all these conventions and procedures, the reality of human rights around us remains so dismal? Is there not an overwhelming sense of frustration, of cynicism? A third World War has not taken place, but conflicts are constantly occurring. International Humanitarian Law cannot cope with these new types of conflict, and even less international human rights law. All this cannot be denied.
If there is one lesson that I have learned—among a number of others, dare I add—it is not to approach the subject of human rights in evaluatory terms; in this work, I have avoided all characterizations of ‘better’ or ‘worse’, ‘improvement’ or ‘deterioration’. I leave it to the reader to make those assessments, and having done so, to make better use of these experiences to address current human rights challenges.
There is an ongoing process, starting with the launching of the ‘very great enterprise’ in 1946 that has not ceased.
Many of these developments came about as a result of serious human rights violations that took place in several regions, even as the Commission was building the network of treaties, procedures and institutions. Between 1975 and 1979, some 2 million people perished in Pol Pot’s Cambodia, a genocide that the Commission only dealt with tangentially. When the phenomenon of large-scale flows of people (including refugees, internally displaced persons, economic ‘migrants’ and ‘asylum seekers’) was raised in the Commission, it was unable to maintain focus on the underlying human rights roots, preferring to treat it as a humanitarian, refugee issue. Again, during the same period, the phenomenon of ‘involuntary disappearance’, first in Pinochet’s Chile and soon thereafter under the military dictatorship in Argentina, introduced yet another reason for collective international action; again, slow to emerge. The courage and determination of the victims, not least the boat people in South-East Asia and the ‘madres de la Plaza de Mayo’ in Argentina played a determinant role in getting the Commission to address such issues, as did the wars in Palestine of 1948 (p. 8) and 1967, resulting in the ongoing military occupation, and its human consequences extending to the region and beyond since then.
This is the backdrop to the work of the Commission (and now the Council). Against this background, many issues found their way on to the agenda, often remaining there for decades without any significant improvement in the human rights situation of the affected people. It is my objective that this work will assist to keep the trajectory of the Great Enterprise on track.
The ten chapters that make up this book trace the developments immediately following the launch of the Commission on Human rights, notably the unsuccessful attempt to maintain an integral, holistic concept of human rights (Chapter 1). This is followed by the description of the issues that the Commission took up in the decades that followed (Chapter 2), a description of the methods to enhance absorption and domestication (Chapter 3) and the organizational, managerial underpinning of the work of the Commission (Chapter 4). Special focus is dedicated to economic, social and cultural rights (Chapter 5) as an introduction to the core chapters, describing special procedures and international human rights law (Chapters 6 and 7). Chapter 8 described the developments in the aftermath of the Vienna World Conference including the establishment of the Office of the High Commissioner for Human Rights, the mainstreaming of human rights across the United Nations system and the outreach to business. This is followed by the arrival of the Human Rights Council (Chapter 9).
The last chapter attempts to set out the relevance of these developments to the individual—the ultimate measure by which to assess the priorities in the coming years.
The purpose of this book is to provide the most ample version of the Great Enterprise both in substance, and in time. It is intended as a multi-dimensional record, not a record of achievement, nor a record of failure, but a record that will hopefully speak for itself, to provide context and to provoke a need for action and for priorities in addressing (and redressing) issues that we face today that have their roots in experience since the Great Enterprise was launched.
These issues relate to the imbalances and injustices that breed conflict and to the institutions that have been set up to address them, not least the Human Rights Council. The inter-dependence of economic and social rights and civil and political rights has advanced exponentially since their separation in 1952, but the schism is still felt in many spheres of life. The implementation of the right to sovereignty over natural resources, set out in both Covenants, has yet to find meaningful application, as is amply illustrated by the ever-expanding gap in the distribution of wealth in society.
It is therefore understandable that this situation gives rise to sentiments of cynicism; it is precisely these sentiments that encourage us to provide this work as evidence of the primordial need to further pursue the Great Enterprise launched in April 1946.
1 The ‘nuclear commission’ was made up of nine persons, three of whom were unable to attend the first meeting: René Cassin (France), CI Hsia (China), KC Neogi (India), Dusan Brkish (Yugoslavia), Eleanor Roosevelt (United States), Nikolai Kiukov (USSR); unable to attend were Paal Berg (Norway), Fernand Dehousse (Belgium) and Victor Raul Haya de la Torre (Peru).
Ladies and gentlemen, it is a new thing and it is a great thing in the history of humanity that the international community organised after a war which destroyed material wealth and spiritual wealth accumulated by human effort during centuries has constituted an international mechanism to defend the human rights in the world.
I will not take a long time to greet you here. You know that the United Nations organization is happy to see you here and you know also that all men of all the free peoples and of all the people liberated from slavery, put in you their confidence and their hope, so that everywhere the authority of these rights, respect of which is the essential condition of the dignity of the human person, be respected.
And, if we close our eyes, we can also imagine a welcome, grave and serious, from the other side, where the shadows of all the soldiers, sailors, and aviators, all the fighters for the civilian resistance who died on all the battlefields of the world, hoping that right and liberty be re-established all over the world. Do not measure the importance of your commission on the basis of its present dimensions.
We are only at the starting point of a very great enterprise, the volume of which and the action of which will have to grow, day after day. You are the seed out of which great and beautiful harvests must come. When you will have elected your president and set up the rules for your work—you will first have to look for the methods to complete the commission and make proposals for the constitution of a final commission sufficiently numerous, so that all the views of the thought of free men will be represented, but small enough so that its work will be quick and truthful—and then you will also have to define and determine the study programme of the commission and start the action of the Organization of the United Nations on the road which the Charter has set for it.
In the reconstruction of the world, the material tasks are most important, but the effort of all town planners, of architects, or doctors, will only assume its real significance if humanity start again to have confidence in its destiny, if the human community gets together around a minimum of common principles.
You will have to study all the declarations of rights which were born in the spirit of man and people on the march toward their liberation. You will have to show that the political rights are the first condition of liberty but that today the progress of scientific and industrial civilisation has creating economic organisations which are inflicting on politically free men intolerable servitude, and that therefore, in the future, the declaration of the rights of man must be extended to the economic and social fields. You will have to look for a basis for a fundamental declaration of human rights, acceptable to all the United Nations, the acceptance of which will become the essential condition of the admission in the international community. You will have before you the difficult but essential problem to define the violation of human rights within a nation, which would constitute a menace to the security and peace of the world and the existence of which is sufficient to put in movement the mechanism of the United Nations for the maintenance of peace and security. You will have to suggest the establishment of machinery of observation which will find and denounce violations of the rights of man all over the world.
Let us remember that if this machinery had existed a few years ago, if it had been powerful and if the universal support of public opinion had given it authority, international action would have been mobilised immediately against the first authors and supporters of fascism and nazism. The human community would have been able stop those who started the war at the moment when they were still weak and the world catastrophe would have been avoided.
Ladies and gentlemen,
I am sure that you will not hesitate before the tremendous scope of our task which the confidence of people has put on our shoulders. I pray that your actions and work may be a permanent guide for men of goodwill, who are looking toward a better future, and that they will show them the way, like a guiding star.
5 General Assembly 60th session, resolution 60/251 of 15 March 2006. Operative para 13: ‘Recommends that the Economic and Social Council request the Commission on Human Rights to conclude its work at its 62nd session, and that it abolish the Commission on 16 June 2006.’
8 General Assembly sixth session, resolution 543 (VI) of 5 February 1952. The year before, in 1950, faced with the same decision, the Assembly had directed otherwise and had requested the Commission ‘in accordance with the spirit of the Universal Declaration, to include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to civic and political freedoms proclaimed by the draft Covenant’, General Assembly fifth session, resolution 421E (V) of 4 December 1950.