Draft Convention Relating to the Status of Refugees. Memorandum Prepared by the Legal Department
FEDERAL AND TERRITORIAL APPLICATION CLAUSE MEMORANDUM PREPARED BY THE LEGAL DEPARTMENT
The question of the federal and colonial clauses was discussed at the fifth General Assembly as a result of the decision of the Economic and Social Council Resolution 303 I (XI) transmitting the Draft Covenant on Human Rights and Measures of Implementation to the General Assembly for consideration with a view to reaching policy decisions on, among other questions, the desirability of including special articles on its application to Federal States and to non-self-governing and trust territories. The question was referred to the Third Committee.
At the request of the Commission on Human Rights, the Legal Department prepared a report (E/1721) containing all federal and colonial clauses adopted by United Nations organs as well as summaries of the discussions in connection therewith. This paper contains a summary of the discussion on the federal and colonial clauses at the Third Committee and the Plenary Session and should be considered as an addition to the background material contained in Document E/1721.
Separate Discussions on Both Clauses1
The United States Delegation suggested that in order to simplify matters, the federal clause and the colonial clause should be discussed separately, Contrary to this view, the Belgian delegate stated that both the colonial and the federal clause tended to restrict the scope of the obligations inherent in participation in a treaty. That similarity called for a comparative simultaneous examination which, although it might not necessarily lead to conclusions applicable to both clauses, would certainly contribute to a better understanding of the problems involved. It was decided to consider both clauses separately.
The Colonial Clause2
Opinions Favouring Inclusion:
The representative of Brazil said that his Delegation was in favour of including a clause on the application of the covenant to the non-self-governing territories. He stated that not all the non-self-governing territories had reached the same stage of development and the principles of the covenant could not therefore be made effective immediately. The administering powers nevertheless should do everything possible to stimulate their development and it was incumbent on the administering authorities to apply the covenant with due regard the degree of development in each territory on the basis of a realistic approach both to the problems of the non-self-governing populations and to the needs of the minority of settlers living among them.
The Delegate of the United Kingdom emphasized that the question before the Committee was not whether it was right or wrong that a colonial system should still exist in the 20th Century but merely whether, with such system in existence a colonial clause should be incorporated in the Covenant. The U.K. had never claimed that the peoples of the territories under its administration were sovereign and independent. No one could deny however that those peoples were constantly progressing along the road to self-government and independence and it was precisely in order to take such progress into account that a colonial clause should be inserted in the Covenant. As a rule the U.K. Government undertook no obligations on behalf of the colonies under any convention or treaty without consulting the local Governments. If the colonial clause were omitted, the participation of colonies in an international convention would become automatic and those territories would thus find themselves deprived of the right to decide for themselves. The opponents of the colonial clause would therefore seem to be illogical since they demanded autonomy for the peoples of the non-self-governing territories while at the same time denying them the right to decide for themselves. In his opinion the only correct and democratic solution was to incorporate in the covenant an article allowing a colonial power to accede immediately to the covenant for its metropolitan territory and subsequently, after consultation with the colonial territories, for each of the colonies when they had declared their willingness to have the covenant extended to them. If the colonial clause were not incorporated in the covenant the metropolitan Governments would be obliged to consult all their colonial territories before ratifying the covenant. In the case of the U.K., that would not prevent the Government from applying the covenant but would delay its accession to it.
The representative of France considered that the problem of a colonial or territorial clause was essentially the same as that of the federal clause. It was a question of determining whether or not certain constituent parts of a given State could accede to an international instrument before other parts of the same State. France based its policy in the matter primarily on Art..73 of the Charter and Art..2 of the Universal Declaration on Human Rights which precluded all discriminatory measures, but it should be understood that the problem was not as simple as some believed. The French Delegate undertook to determine the scope of obligation of the so-called colonial clause with respect to the French Union and discussed the use that France had made of the colonial clauses that were included in previous instruments.
He warned the Committee against omitting a territorial clause, which would represent a double disadvantage. It might subject countries inhabited by different peoples to uniform obligations and the standards that they adopted for their legislation would be those applicable to peoples still in the lowest stage of development; or in the case, for example, of a convention on the rights of the family, it would involve transformations that might require several months in metropolitan France but could only be carried out in the overseas territories after a long period of time and then under conditions that might endanger public orders since the peoples would not be ready for such changes. In either case, such measures would run the risk of retarding human progress.
The Delegation of Greece was in favour of the Colonial clause stating that a policy of compulsion would indeed be ineffective, since it was not enough to pass a law to bring customs into line. Such a policy might even prove dangerous since there were already enough potential sources of trouble in the world. The delegation of Greece entirely approved the proposal of the Government of Australia (E/1681, Annex I, page 22) requiring the administering authorities state the reasons for which they had not extended the application of the covenant to all their territories.
The Delegate of the United States said that the U.S. was not obliged to obtain the consent of the territories which it administered before it extend to them the obligation of an international convention that it had signed and, ratified on their behalf as well as on that of the metropolitan territory. Nevertheless, the U.S. Delegation was aware of the constitutional difficulties that might be encountered by certain States in that connection and would therefore support the inclusion of a colonial clause in the draft covenant.
The representative of Australia stating that his delegation was in favour of including a colonial clause in the draft covenant, nevertheless considered that it would be premature to take a final decision in that connection since the purpose of the current debate was to find out the views of members of the committee and especially of those who were members neither of the Commission on Human Rights nor of the Economic and Social Council in order that the Commission might take such views into consideration when it had to reconsider the draft. He pointed out that Chapters XI and XII of the United Nations Charter., concerning non-self-governing territories and the International Trusteeship System, had drafted with special care. Both chapters make clear that the Administering Powers must allow for the particular circumstances of each territory and its peoples and their varying stages of development. Article 73a. specifically mentioned "due respect for the culture of the peoples concerned". Certainly no authority could be derived from the Charter for the proposition that covenants like that on human rights should be applied automatically to such territories.
He drew attention to the discussions of Articles 3 to 18 to the effect it was not enough to include in the Covenant provisions which only constitute lowest common denominator of rights that were already acknowledged throughout the world. Under such principles the instrument which was to be drawn up would not correspond at least for the time being to the conditions prevailing in the most backward countries. In those circumstances it seemed right and necessary to provide a clause which would make it possible to apply the Covenant immediately whenever that was possible and to apply it by degrees in other cases. The Australian delegation respected the sincerity of the representatives of countries who had recently achieved their independence, but it did not feel that it was defending the by-gone colonial era by defending the colonial clause. He agreed with the argument of the United Kingdom to the effect that administering powers should not accede to international conventions on behalf of colonial or trust territories without having duly consulted the wishes of the peoples governed. That applied particularly where self-governing institutions existed. A vote against the colonial clause would Therefore to some extent stultify the development of the practice of self-government in these areas.
The representative of New Zealand considered that the inclusion of the colonial clause in the Covenant was desirable in the interests of securing the prompt and extensive application of that Covenant. Far from promoting the chose of the independence of non-self-governing territories, the attitude of the delegations which wished to reject the colonial clause could only serve to delay the application in large part of the world of instruments such as the Covenant which should nevertheless be accepted and implemented by all governments as soon as possible.
The representative of Canada stated that he would vote for the inclusion of the colonial clause since the experience of Canada itself enabled him to vouch for the sincere good intentions of the administering powers. It was in fact his feeling for the interests of the local authorities rather than any concern for those of the administering powers which prompted his support of the clause. Under articles 73 and 76 of the Charter the administering powers morally bound to promote to the utmost the protection of human rights and fundamental freedoms in territories whose peoples had not yet attained a full measure of self-government. Furthermore to promote to the utmost was a very different matter from imposing by force; to impose the rights laid down in the first 18 articles of the draft covenant would obviously itself be a fragrant violation of the sacred principles of self-determination.
The representative of Belgium was in favour of the inclusion of the colonial clause and said that the Government of Belgium hoped that it would not be compelled to give immediate automatic effect in the Congo to the principles of the covenant but would be permitted to judge the best and most practical time to do so. He thought that the attacks launched against the administer powers might be traced to a form of resentment complex felt by countries which had suffered in the past from foreign domination.
The history of Belgium itself provided a parallel for that of the Congo and other non-self-governing territories. Originally, Belgians had been me a collection of tribes which had been overrun by the Roman Empire. While contemporary Belgians were extremely proud of the leaders of those tribes which had battled valiantly for independence, they were well aware that they owed much of their existing civilization to Rome, and through Rome to Greece. It had, however, required centuries for Belgium to take its place in the fore-front of civilization as currently understood.
Opinions against its inclusion:
The delegation of India was convinced that the colonial clause would the metropolitan powers the right to impose their will upon the peoples of the Non-Self-Governing Territories. The Indian delegation was the more strongly opposed to the insertion of the colonial clause because it was precisely in the Non-Self-Governing Territories and in the colonies that the Covenant should be especially applied., since it was there that violations of human rights were unfortunately most frequent.
The delegate of Yugoslavia stated that in his opinion, the question should be studied in the light of the Charter and in particular of Article 73. By accepting those obligations, the metropolitan powers had undertaken to allow the peoples of the territories to participate in all the obligations which contracted in the international field, and in particular in those arising from the conventions and agreements adopted by the United Nations. It would, therefore, be contrary to the spirit and even the letter of the Charter to attempt to authorize the metropolitan powers to exclude the territories placed under their administration from 'the application of the Covenant on Human Rights.
Those who upheld the colonial clause had taken their stand solely on constitutional grounds, but it should be recalled that under the Charter of the United Nations, Member States had accepted the obligation to bring their constitutions into line with the provisions of the Charter and even, if necessary, to recognize that those provisions took precedence over the corresponding clauses of their own constitutions. It was not a question of imposing obligations on a territory without the previous consent of its population, but simply of granting the rights which were its due.
Either the colonies enjoyed self-government, in which case they could freely accede to international agreements, or such self-government did not exist; in which case only the metropolitan powers were able to accede to such agreements.
The Syrian delegation stated its opinion against the inclusion of the colonial clause adding that the Covenant, in consecrating a number of essential rights, represented a step forward in social and humanitarian development. It was convinced that the application of the Covenant would assist backward countries to develop. There was no question of imposing a decision or a covenant upon those countries but only of supplying them with the means of progress, For that reason, the Syrian delegation would willingly agree to the insertion of the colonial clause if that clause would really enable the colonies, protectorates and Trust Territories to have a voice in the various commitments entered into on their behalf; but that was not the case.
The Syrian delegation considered, moreover, that the colonial clause would be contrary to the United Nations Charter, which was based upon the principle of equality of human rights. What was to be feared was not the refusal of territories to accede to the Covenant, but the refusal of the colonial Powers to apply the Covenant.
The delegate of the Union of Soviet Socialist Republics recalled that his delegation had already given the reasons why it objected to the inclusion of a Federal clause in the Covenant on Human Rights. The same reasons led it to object to the adoption of a colonial clause.
It considered that any State which acceded to an international Covenant was obliged to extend its application to all the territories under its jurisdiction, without any exception. The purpose of the so-called colonial clause was to enable the colonial Powers to exclude the populations of the territories they administered from the field of application of the instrument concerned.
He recalled that, by signing the Charter, all the Member States of the United Nations had undertaken a solemn obligation to promote to the greatest possible extent the welfare and prosperity of the peoples dependent upon them. He quoted the provisions of Article 73 and Article 76 of the Charter and referred in particular to paragraph (c) of the latter Article, which mentioned among the essential purposes of the Trusteeship System the obligation "To encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."
He also recalled the wording of article 2 of the Universal Declaration of Human Rights. The second paragraph of that article provided that "no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs whether it be independent., trust, non-self-governing or under any other limitation of sovereignty.
The Ukrainian delegation stated that inclusion of such a clause would be contrary to the fundamental principles and purposes of the United Nations, to the provisions of Chapters XI and XII of the Charter and to the Universal Declaration of Human Rights.
It was considered in certain quarters that there were still regions in the world where the stage of development was such that the inhabitants should not be allowed to enjoy all the rights set forth in the draft Covenant. That was indeed surprising, if it was remembered that those rights related to life personal integrity, the freedom of the individual, his equality before the law, his freedom to work and freedom of access to educational establishments.
He wished the Committee to disregard juridical, constitutional and other considerations, which were merely excuses; it should allow itself to be guided solely by the wish to give all the peoples of the world, especially those which did not yet enjoy their independence, the guarantee that they could benefit fully by their status as human beings and citizens of the world.
The delegate of Ethiopia wished to state that his delegation was opposed to the inclusion of the colonial clause. He reviewed the first eighteen articles proposed for the first Covenant and stated that he could find nothing in them that could not apply to colonies and non-self-governing territories and nothing that might give rise to difficulties in the relations between those territories and the metropolitan powers.
The representative of Czechoslovakia stated that the United Nations must not seek evasive formulas but frame a Covenant which would help the oppressed peoples to become aware of their right and help the colonial powers to apply its provisions so as to promote respect for human rights and fundamental freedoms and to insure equality of treatment in the economic and social fields. The draft Covenant set forth in detail the obligations contained in the Charter and those obligations could not and should not in any way be restricted so as to favour any of the signatory states. He wished to state that his delegation was categorically opposed to the inclusion of a colonial clause.
The delegate of Poland said that the colonial clause was not new and that for a long tire it had been one of the devices used by the colonial powers to escape the responsibilities and duties encumbent upon them in connection with non-self-governing territories under their administration. Owing to certain specific obligations imposed upon the colonial powers, under Article 73 of the Charter, it was their duty to extend the provisions of the draft Covenant to their dependent areas. In the view of his delegation, the inclusion of the colonial clause in any treaty was contrary to Chapter XI of the Charter. The colonial clause would leave the colonial powers free in respect of the application of the principles and provisions of the draft Covenant in the very territories where the defense of human rights was most urgently needed.
The delegate of China spoke against the inclusion of the Colonial clause and noted from paragraph 34 of the Secretary-General's Report on the question (E/1721 and Corr.1) that the General assembly had eliminated the colonial clause from the 1921 Convention for the Suppression of the Traffic in Women and Children, the 1933 Convention for the Suppression of the Traffic in Women of Full age, and the 1923 Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications. If it had been possible to eliminate the colonial clause from those conventions it would surely be inadvisable to reintroduce it by including it in the draft Covenant. After all the draft Covenant dealt with the field of human rights and it would be difficult for the United Nations to explain why those rights should not be applied in the non-self-governing territories.
The delegate of Pakistan stated that the metropolitan powers should consult their non-self-governing territories before the Covenant was drafted and again at the time for signature. To the constitutional arguments favouring inclusion of the Colonial clause he replied that the total population of the colonies was vastly greater than that of the metropolitan countries. In practice, millions of people were represented in the United Nations only by their governors, who pleaded that they could not in fact represent the peoples of their colonies, but, on the other hand argued that the colonial peoples could not represent themselves. If, however, the metropolitan countries did not, and did not even claim to, represent the colonial peoples, it was legitimate to inquire why no proposal had ever been made in the United Nations that representatives of those peoples should be invited to attend the meetings, if only in a consultative capacity.
The representative of Iraq stated that her delegation opposed the inclusion of the colonial clause in the Covenant on Human Rights and added that however weighty the arguments advanced for its inclusion it would deprive the Covenant of all practical effectiveness; the very aim of the Covenant was to insure the obligation of human rights to peoples who were deprived of them, who lived in ignorance of what was due to them as human beings.
The representative of Saudi Arabia explained the effects of the colonial situation upon the problem under discussion, So long as the colonies remained indispensable to the economic survival of the metropolitan powers, those powers could not afford to allow the dependent peoples to enjoy the advantages of instruments like the Covenant which would make them conscious of their rights. He himself had thirty years' experience in a number of territories and had seen the indigenous inhabitants ask for the enjoyment of inalienable rights such as those laid down in the Covenant and had seen them brutally refused in the name of the law and of the public order. He had seen the inhabitants of those same territories called upon to fight and die for causes which were not their own without being consulted in any way by the metropolitan powers. He asked whether the colonial powers feared that the peoples of non-self-governing territories would be driven to rebel if immediate effect were given to the Covenant in those territories; or, if they wished, to postpone its application until they had settled their economic difficulties.
The representative of the Byelorussian Soviet Socialist Republic said that the adoption of that clause would mean discriminating against hundreds of millions of human beings. It would be offensive to human dignity and would create situations in which the colonial powers could refrain from applying the provisions of the Covenant in their territories.
The representative of Indonesia pointed out that if the clause were included the General Assembly would in effect be giving a privileged class of human beings the right to decide arbitrarily how far the rights enjoyed unreservedly by themselves could be granted to less favoured classes. Her delegation thought that at their current stage of development all peoples whoever they were could claim the right to life, liberty and security of person and demand the abolition of slavery and servitude and the suppression of torture and cruel and inhuman or degrading treatment or punishment.
The representative of Lebanon emphasized that his delegation was not opposed in principle to the inclusion of a colonial clause - it had supported it in the case of other conventions for example, that on road transport and it would be quite prepared to recognize the validity of that argument, were it not that the Covenant on Human Rights was in question. He believed that in the special case of the Covenant the rights granted could not be made dependent on accidental Circumstances, nor on the degree of development of the peoples concerned., nor on the political, legal, or international status of the country of which those peoples were nationals. The purpose of the Covenant was not to protect governments but to protect peoples.
The representative of Mexico spoke against inclusion of the colonial clause, stating that the United Nations Charter, especially in its Chapter XI, imposed on all Member States the unavoidable obligation of insuring the fundamental rights and freedoms of all human beings Without exception. In view of that mandatory provision it was impossible to agree that the benefits of the provisions of the Covenant on Human Rights could be denied to a large section of humanity and still less to suppose that the populations concerned might themselves refuse that privilege.
He stressed the importance of the so-called federal clause which apart from its effect on the Covenant on Human Rights would decide the fate and value of a large number of the multilateral instruments which would be signed by the members of the United Nations in the years to come. He recalled that reservations were the most delicate point in the legal structure of a Covenant or treaty for they might frustrate an agreement completely. The colonial and federal clauses were reservations embodied in the actual text of treaties. He remarked that an absolute excess of local law might lead to the ruin of any federal State..'To admit the federal clause would be to admit that the states concerned possessed two personalities - one on the international level, the other on the federal level. It was to be inferred from the draft declaration on rights and duties of states, that some states, although sovereign, form parts of other states. But international law was binding upon all states whether or not they form part of a federation. He stated that the federal clause was tantamount to a reservation and a unilateral escape clause. It violated the principle of equality of states and ran counter to the principle of reciprocity and undermined unity in the struggle for the economic., social and cultural objectives of the United Nations. It permitted the automatic abrogation of obligations in advance and made its implementation impossible. It would make it impossible to call a federal state to account for failure to fulfil its obligations. The arguments based upon the limitation to the powers of the Senate of a federal state were untenable. The Senate could approve or reject a treaty and its members represented their states.'
Because of the text approved by the Third Committee referring to the elimination of the colonial clause, federal states which are responsible for non-self-governing territories will 'automatically be deprived of the benefits of a federal clause. The text of draft resolution II runs as follows: "the provisions of the present Covenant shall extend to or be applicable equally to a signatory metropolitan state and to all the territories, be they non-self-governing, trust, or colonial territories, which are being administered or governed by such metropolitan state". This makes it perfectly clear that federal states which are responsible for non-self-governing territories or trust territories will not be able to avail themselves of the federal clause.
The representative of Chile wished to point out that it was customary to refer indifferently to colonies, non-self-governing territories and trust territories. It should not be forgotten, however, that the populations of the trust territories were sovereign peoples and that the responsibility for their administration laid solely with the United Nations, which delegated that responsibility to one of its members with the reservation clearly stipulated in one of the clauses of the trusteeship agreement, that that member would administer the territory concerned as it would administer one of its own territories. Thus, the current discussion could have no bearing whatsoever on the trust territories. It referred only to the non-self-governing territories and colonies for which the United Nations was not directly responsible.
The Chilean Delegation stated that it strongly objected to any colonial clause.
The representative of Afghanistan stated that those who claimed they were trying to civilize the peoples whom they were colonizing should at learn give then, the right to learn how to become conscious of their human dignity, The representative of Egypt said that his delegation had voted in favour of separate consideration of the federal clause and the colonial clause because in its view those two clauses were based on rather different considerations. The first appeared to be linked up with the procedure for ratification of the Covenant and the second with the applicability of the principles of human rights. It seemed that the inclusion of a colonial clause in the Covenant would lead to the non-application, or at least to the incomplete application of human rights in the colonial and semi-colonial territories while those rights would be fully applied throughout the rest of the world. The Egyptian delegation objected therefore to the inclusion of the colonial clause unless that clause were drafted in the mandatory form proposed by the delegation of the Philippines, a form which appeared in the Report on the Commission of Human Rights, sixth session (F./1681, Annex 1, p.22)
The Delegate of the Philippines said the purpose of the draft resolution submitted jointly by the Philippines and Syria (A/C.3/L.71/Rev.1) was to do away once and for all with the so-called colonial clause which constituted a constant source of irritation, as well as of embarrassment for the colonial powers. Because the U.N. Charter., in several passages mentioned human rights and the human person., a new concept had arisen in public international law - that the individual could be the subject of international law. The benefits of the covenant should therefore be extended human beings everywhere. The Philippine and Syrian draft resolution stressed two points: from the legal viewpoint the metropolitan powers might be regarded as principals whose international commitments should automatically extend to the colonial territories From the moral viewpoint the inhabitants of the dependent territories were clearly as much entitled to the enjoyment of human rights as anyone else.
The Federal Clause 3(1)
Opinion in favour of its inclusion:
The delegate of the United States proposed at the Third Committee for consideration a proposal made by the same delegation at the sixth' session of the Commission on Human Rights which stated that "with respect to any articles of the Covenant which were determined in accordance with the constitutional processes of a State to be appropriate in whole or in part for federal action, the obligations of the federal government should be the same as those of contracting parties which were not federal States, whereas with respect to any articles which were determined to be appropriate in whole or in part for action by the constituent parts of the federal State, the federal government should bring such articles, with favourable recommendation, to the notice of the appropriate authorities of the constituent parts at the earliest possible moment."
'In order to make it possible for federal States to adhere to the Covenant, an article based on the principles laid down should be included. This was the case with the United States. The federal government of the United States was ready to subscribe to the obligations contained in the Covenant on any matters within its competence, but it could not do more than bring any obligations within the competence of the appropriate authorities in the forty-eight states to the attention of those authorities, with favourable recommendation, at the earliest possible moment. As was well known the text of Article 43, proposed by the United States, was largely based on Article 19, paragraph 7, of the Constitution of the International Labour Organisation.
The Australian delegation supported these views and stated that many of questions dealt with by the Commission on Human Rights were primarily within the competence of the constituent states. They included such fundamental questions as capital punishment and judicial process, retroactive legislation, and punishment, liberty of movement, freedom of speech and thought, freedom of association and assembly. The Australian delegation believed that it would premature to reject the federal clause and that the question should be refer back to the Commission on Human Rights so that it could study the matter more thoroughly and draft a text.
The representative of Canada associated himself with the United States delegation and added that at the time of the signature of the Covenant there might be some doubt as to the extent of the obligations assumed by a federal government itself. It was always possible, though, to obtain an adequate knowledge of the division of powers in a federal State.
As to the objection that the obligations under the Covenant would not be equal for all States, the federal authorities would certainly make every effort to encourage the provincial or state governments to take the necessary measures, and the moral obligation would so strongly reinforce the juridical obligation that any lack of reciprocity would be more apparent than real.
The representative of the Netherlands stated that the adoption of a federal clause would result in considerable disparity of obligations between the unitary states, which would be engaged unconditionally and the non-unitary states which would be engaged only to the extent authorized by their respective constitutions. Such inequality of treatment obviously presents serious disadvantages; but it must be remembered that if a federal clause was not concluded, a number of member states might refuse to ratify the Covenant. He thought the Committee should choose the lesser of two evils. He stated also that his delegation was prepared to suggest the addition of a new paragraph to the effect that the government of a federal State should each year inform the Secretary-General of the United Nations of the progress made by each state., province, or canton, constituting the federal state in regard to the implementation of the Covenant.
The representative of New Zealand shared the view of the representative of the Netherlands that the federal governments should report on the measure of implementation given to the Covenant by the governments of their constituent states.
The representative of the United Kingdom, recognizing the particular position of the federal States, referred to the text submitted by the United States at the fifth session of the Commission on Human Rights which provided that in the case of a federal State certain provisions would apply with respect to any articles of the Covenant "which the federal government regards as appropriate under its constitutional system, in whole or in part, for federal action". He also referred to the text proposed by the representative of India which was worded in a slightly different manner stipulating that the provisions in question would apply with respect to any articles of the Covenant "the implementation of which is, under the constitution of the federation, wholly or in part within federal jurisdiction"... The United Kingdom Government preferred the text proposed by India for it could not admit that a state party to the Covenant should be left free to determine the extent of its own obligations. Moreover as a general rule the governments of said states were not granted such power by their constitution. In most federal states, at least such decisions were taken not by the federal government but by the supreme judiciary organ which was responsible for interpreting the constitution. He also referred to the proposal made by the United Kingdom representative on the Commission on Human Rights to the effect of including a paragraph providing that upon the request of any state party to the Covenant a federal state party to the Covenant should make known the extent to which the provisions of the Covenant were being implemented by the governments of its constituent states, provinces or cantons.
The French delegate stated that if a delay of some years were to be avoided it would be necessary to permit federal States to ratify the Covenant without delay, and that better results would probably be obtained by confidence and persuasion than by compulsion.
The representative of Greece stated that the disparity shown during the discussions might disappear if the said clause was converted into a constitutional clause under which., in the case of a said state, ratification of the Covenant would be contingent upon the consent of certain organs or by means of a plebiscite or a decision by a parliamentary body. The inequality inherent in the said clause in its existing form could thus be removed, even from a chronological point of view, and the wishes of its advocates would still be met.
The representative of Lebanon stated that he had every consideration for the difficulties of the federal States but he asked them to furnish the largest number of guarantees in order to wipe out any inequality between them and the unitary states. For instance, they might make a statement indicating which of their constituent states had been able to accept the articles of the Covenant and those articles to which the remainder could not commit themselves. Such a step would enable the other signatory states to know what the situation was in the federal States. If the line of demarcation between federal and local authority was impossible to determine, that step would at least allow a list of the States accepting the articles of the Covenant to be made available.
Opinions against its inclusion:
The delegate of Pakistan stated that it should not be forgotten that each member of the Committee represented a sovereign State able to assume international obligations, and not a federal or central government. It might be admitted that those States were bound to ask the opinion of the parties composing them regarding certain parts of the Covenant. They should therefore consult those parties and then sign, pledging all their responsibility if they had received authority to do Even if that procedure took two or three years, it would be a very little time in history. The members of the Committee represented sovereign States, some of which would sign with reservations, while others would accept full responsibility. He considered that the federal clause was useless and asked the Committee to think of the unhappy moral consequences which the inclusion of that clause would have; it would encourage the adoption of a colonial clause which was even more open to criticism.
The representative of Yugoslavia thought it was necessary to provide that the Covenant could not be ratified by the federal States until they had given a preliminary assurance that it would be applied in all their constituent territories The Yugoslav delegation had submitted an amendment to that effect to the text which appeared as the report of the Commission on Human Rights on its third session
The representative of Uruguay stated that the application of the federal clause would establish in respect of the obligations arising out of treaties a disparity to the disadvantage of unitary states. With due regard to the difficulties of federal states, the Uruguayan representative considered that the objectives of federal States would be amply safeguarded by the traditional procedure of signing treaties with reservations which would make it unnecessary to introduce a federal clause and so prevent the disparity to which that clause would give rise.
The representative of Denmark thought it highly undesirable to include in the Covenant a federal clause which appeared to favour said states over unitary states, It was understandable though that by reason of their peculiar constitutional-position, said States would need some time before they could ratify that instrument. That delay., though regrettable., was infinitely preferable to the inclusion of a federal clause of the type proposed which would probably have the effect of preventing many unitary states from adhering to the Covenant.
The representative of Cuba stated that the adoption of said clause would be equivalent to introducing a multilateral reservation. Even if certain constitutions did not permit immediate ratification, it should be recognized that human rights was a subject in which it would not be advisable to invoke the federal clause,
The representative of Mexico associated himself with the remarks of the representative of Pakistan, Uruguay, Colombia and Cuba and considered that the inclusion of a federal clause would import a glaring inequality between federal and unitary states. Moreover, it was very difficult to define precisely the character of a federal State and to indicate those of its functions which required the consent of its constituent parts, One of the major arguments against the insertion of the federal clause was, however, the exalted nature of the document under consideration by the Committee. The object was to defend an ideal and to consolidate what had already been achieved in different countries. He recalled the distinction that had been drawn 30 frequently, particularly previous meetings of the Committee, between moral obligations deriving from Universal Declaration of Human Rights and legal obligations deriving from the Covenant. He agreed on the need for certain reservations in that type of Covenant, but considered that the said clause would introduce an element of uncertainty into the Covenant.
Final Action by the General Assembly
The General Assembly at its 317th Plenary Meeting in Resolution 421 (V) C "Calls upon the Economic and Social Council to request the Commission on Human Rights to study a federal State article and to prepare, for the consideration of the General Assembly at its sixth session, recommendations which will have as their purpose the securing of the maximum extension of the Covenant to the constituent units of federal States, and the meeting of the constitutional problems of federal States"
As for the colonial clause, Resolution 422 (V) "Requests the Commission on Human Rights to include the following article in the International Covenant on Human Rights: The provisions of the present Covenant shall extend to or be applicable equally to a signatory metropolitan State and to all the territories, be they Non-Self-Governing, Trust or Colonial Territories, which are being administered or governed by such metropolitan State".
1 General Assembly, Fifth Session. Third Committee, 292nd Meeting.
2 General Assembly, Fifth Session. Third Committee, 294th, 295th, 296th Meeting, General Assembly Fifth Session, 317th Plenary Meeting.
3 General Assembly, 5th Sess, 3rd Committee, 292nd, 308th and 309th Meetings, 317th Plenary Meeting.