alone is not enough. Strength alone affords no basis for enduring peace. It must be strength in the service of great ends, the ends for which our country was founded, the ends for which successive generations of Americans have given their lives.

To provide a basis for enduring peace, our foreign policy must be positive and creative and not negative and inert. To characterize the objectives of our foreign policy as the containment of Soviet Russia or the containment of Communism is not enough. That fails to distinguish adequately and clearly our policy from that of the Soviet Union. I suppose the policies of the Soviet Union might in a sense be described as the policy of containing the United States, or of containing capitalism. Our policy should be based upon principles of law and morality; our powers should be exercised in behalf of justice, freedom, health, and human dignity. These principles we can and should uphold on both sides of the Iron Curtain. Nothing will do more to make clear our devotion to these principles than a policy which strives to secure the effective recognition and observance of human rights and fundamental freedoms for all peoples. No policy better accords with the traditions which have made us and kept us a nation of free men and free women.

A BRITISH VIEW OF THE COVENANT*

SANDFORD FAWCETT

I

The Human Rights Covenant is an eloquent witness to the vitality of the Law of Nature. It speaks of human rights in international terms and is a new affirmation of the old union of ius gentium and ius naturale; “Nam ad ius gentium pertinent," says Thomas Aquinas,1 "ea quae derivantur ex lege naturae, sicut conclusiones ex principiis . . . sine quibus homines ad invicem convivere non possunt."

Already Grotius had abandoned the position that natural law is coordinate with divine law, since he believed it could be found by the exercise of right reason, that is, human reason; while over against natural law stands the law imposed by the legislative will, either human or divine; and we find Locke declaring not only that we are born free but also that we are born rational. It is but a short step to the belief that any act contrary to the natural law is null and void; that neither contract* nor legislation can impair rights and duties grounded in the natural law as determined by human reason; and that natural or innate rights are separate from and superior to civil or acquired rights. It is these beliefs which have given the Law of Nature its dynamism, for they generate protest and struggle against the dictates of princes and governments.

We shall find that much of this thinking underlies the Human Rights Covenant. The common law of England has conceived human rights differently. Though it too has felt the purifying influence of the Law of Nature, it has regarded the individual not as the grantee of a number of precisely defined rights but rather as a person whose rights and freedoms are presumed to be unlimited-and therefore undefined-until and to the extent that his contacts with his fellowmen make their

This article has been prepared by the writer upon his own responsibility and does not necessarily represent the views of the Government of the United Kingdom on the Human Rights Covenant.

+ B.A. (Oxon) 1935; M.A. 1938; Fellow of All Souls' College, Oxford 1938. Member of the English Bar. Assistant Legal Adviser, Foreign Office, London, and presently Legal Adviser to U.K. Delegation to the United Nations. Contributor to various legal periodicals.

1 SUMMA THEOL. ii 19. 95 art. 4.

9 HUGO GROTTUS, DE JURE BELLI ET PACIS, Bk. 1, c. 1, par. 10.

JOHN LOCKE, OF CIVIL GOVERNMENT: Two TREATISES, c. 6, §61.

4 So the Virginian Declaration of Rights of June, 1776: “All men are by nature equally free and independent and have certain inherent natural rights of which, when they enter a society, they cannot by any compact deprive or divest their posterity."

5 'Zasius (1461-1535) had clearly stated this principle in the civil law: "Quamvis princeps possit mutare leges particulares, et eis derogare, tamen hoc non potest ubi lex in naturam fundatur." Compare the principle enunciated in Marbury v. Madison, 1 Cranch 137 (U. S. 1803).

*Sir Edward Coke, one of the greatest masters of the common law, called it "the perfection of reason" and was ready even to argue that a Parliamentary statute contrary to the common law was a nullity.

limitation and definition necessary for the social good. The common law has therefore concerned itself not with the formulation and attribution of rights but with the grant of remedies, and the diminution of arbitrary power whether exercised by the King, the government, or the ordinary citizen. Civil liberties enjoy the protection not of a basic constitutional statute but of the strong restraining hand laid by the courts on those who would take them away.

II

The Declaration of Human Rights adopted by the General Assembly of the United Nations in Paris in December 1948 is described in its preamble as "a common standard of achievement for all peoples and all nations," and it was the clear understanding of the General Assembly and those who took part in drafting the declaration that it did not import legal obligations upon the states which subscribed to it. It was in the second part of the International Bill of Rights-the Human Rights Covenant-that states were to make binding commitments.

Now those brought up in the common law tradition cannot, when they read the latest draft of the Covenant, escape certain doubts. The Declaration may perhaps be regarded as as a political and social manifesto, elaborating the principles declared in Article 55 of the U.N. Charter; but if the Covenant is to be a legally binding instrument, can all the rights, which it attributes to human beings, be legally enforced and are not some of them unenforceable altogether? Does the Covenant not appear at least to be granting rights without remedies? To answer these basic questions we may now look over the draft Covenant from the following points of view: the character of the rights recognized in or granted by the Covenant; the problem of implementation; and the principle of domestic jurisdiction laid down in Article 2(7) of the U.N. Charter.

'Completed by the Human Rights Commission on June 20, 1949. It will be reconsidered with comments by governments at the next session of the Human Rights Commission in April, 1950, and the draft covenant will then be submitted to the Economic and Social Council and finally to the General Assembly.

"With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote:

a. higher standards of living, full employment, and conditions of economic and social progress and development;

b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

YEARBOOK OF THE UNITED NATIONS 1946-1947 837 (Dep't of PUBLIC INFORMATION, Lake Success, New York, 1947).

The Lebanese delegation in UN debates upon the Declaration and Covenant and related instruments such as the Freedom of Information Conventions have argued with some force that the Declaration is a gloss upon the U.N. Charter and an integral part of it, that is to say, the Declaration is an expression at length of the ideas contained, in condensed and elliptical form, in paragraphs (a) and (c) of Article 55; the Lebanese delegation sought therefore to give the Declaration the same binding force as the Charter itself.

III

On reading the Covenant we are struck by the variety of rights and the differences, even of kind, among them. First, there are certain rights which may be fairly described as inalienable and fundamental-inalienable because there are no circumstances in which we could justify a denial of them, and fundamental because a persistent denial of them will undermine and finally destroy the community itself; an ordered society, dedicated to the goals which civilized man has set himself, does not confer such rights on the individual, it presupposes them. Into this class fall, in the opinion of the writer, Article 6 and to some extent the related Article 7; Articles 8 (1) and (2); and Articles 14, 15,10 and 20 (1). These are provisions to which there can be no exception, whatever social or economic policies are being pursued and whatever emergency may arise.11 Secondly, there are rights which arise because individuals live in communities; they presuppose an ordered society, are protected by that society, but are subject to qualifications and even restrictions where the interests of the community so require; the principle underlying such restrictions seems to be that each individual shall, so far as is practicable, have an equal enjoyment of his rights and freedoms with every other individual in the community; this equality can perhaps never be fully attained but it is the measure by which the rights and freedoms of each are limited for the benefit of all. Into this class fall, for example, Articles 5, 9, 13, and 16, and certain related articles. The restrictions upon the enjoyment of such rights are or should be rarely applied, and then only when subject to precise legal definition and control.12 Thirdly, there are rights which are derived from the general economic and social objectives of the community; it is permissible to ask whether these are rights at all in the same sense as those falling into the first two classes, and not rather a dramatized and pseudo-legal way of describing those objectives. They become rights and so legally enforceable only when the social and economic objectives have been actually attained; until that time they are political demands of individuals or groups within the community. Into this class would appear to fall some of the proposed additional Articles -Article II (1) and possibly Article 19 (1).

Physical mutilation and torture can never be justified; the plea that they may be used, for example, to obtain information of vital importance to the community can be shown to be specious. Some medical or scientific experimentation may of course be quite harmless, and it is partly for this reason that the Commission decided to consult the W.H.O.

10

This Article seems both unnecessary and obscure. Under English law all human beings are legal persons though they may differ in their legal capacity: thus peers, lunatics, bankrupts, felons, minors, and others have various legal disabilities, but they are none the less legal persons. Further, there seems to be some overlap with Article 20 (1). Finally, the expression "a person before the law" is obscure; does it mean legal person or does it refer to the right of access to the courts?

11 Article 4(2): "No derogation from Articles. . . . can be made under this provision," allows this principle. It is an interesting question whether certain of these rights are exclusively human, or are not also enjoyed by animals. Animals do have in some countries certain legal protection.

12 There is of course room for argument whether particular rights fall into the first or second class. For example, the United Kingdom representative on the Human Rights Commission suggested that Article 5 should be included among the provisions to which Article 4(2) applied. Article 5 will be discussed below.

We may summarize this brief review by saying that the Covenant has to do with certain basic rights, enjoyed by all human beings as such, which are or should be legally enforceable; with other rights, which are normally legally enforceable but are subject to restriction at the will of the community in special circumstances;13 and finally with certain so called rights, which are rather political demands, which have an appropriate place in the Human Rights Declaration but not in the Covenant, which is a legal instrument.

Let us now look at Articles 514 and 9 a little more closely. In some ways the rights set out in these Articles lie behind all the others, for if these are denied or abused, there is little hope for continued enjoyment of the rest. The prime issue in Article 5 is, of course, whether the Human Rights Covenant should go forward to outlaw capital punishment. Opinion in the United Kingdom is sharply divided; a bill presented recently in Parliament, which would have abolished the death penalty15 for an experimental period of five years, was passed in the House of Commons upon a “free” vote, the Government having expressed itself against the measure; but it was rejected by the House of Lords, where a great weight of judicial authority16 was brought to bear against it. A compromise measure also failed of adoption in either House. The United Kingdom would not therefore be able at the present time to subscribe to an international agreement which obliged it to dispense with the death penalty. Certain other countries take the same position.

Failure to reach agreement on the abolition of capital punishment has led the drafters of the Covenant, perhaps understandably, to distort Article 5. Apart from the first paragraph, the Article is entirely concerned with the death penalty and ignores the exceptions which must be made to the principle established in the first paragraph; this principle is far too broadly stated.1 In England there are several kinds of homicide. Two are permissible on grounds which there seems no good reason to abandon: homicide is deemed to be justifiable where it is done in selfdefense18 or in the advancement of public justice;19 it is excusable where it is done 13 In several Articles the Covenant itself defines these circumstances and the restrictions which may be imposed.

"The drafting is faulty. The notion of intention should be added to the first paragraph, which is a pallid legalistic statement of the tremendous command: Thou shalt not kill. Further, the first paragraph is flatly contradicted by the second.

15

The offences for which sentence of death may be pronounced in England are murder; piracy on the high seas; treason; and certain other criminal offenses tainted with treason, such as arson of a naval dockyard.

16 Lord Simon (former Lord Chancellor) and Lord Goddard (present Lord Chief Justice of England) led the attack upon the Bill.

17 At its third session in June 1948 the Human Rights Commission proposed a better draft: "No one shall be deprived of his life save in the execution of the sentence of a court following his conviction of a crime for which this penalty is provided by law." Here again the element of intention was left out, but to the draft article were to be added a number of limitations on the principle, which are discussed below.

18 This includes defense of one's immediate family, but the means of defense must not be disproportionate to the attack.

19 If necessary for the arrest of a felon, suppressing a riot, or preventing a violent crime. Where, in 1804, a person dressed up as a ghost and was shot dead, the slayer was convicted of murder on the ground that to masquerade as a ghost is not a crime of violence but only the misdemeanor of nuisance.