Rights Cases113 a statute prohibiting discrimination by the owners of restaurants, inns, and public transportation facilities was stricken down as beyond the power conferred upon the Federal Government by the Fourteenth Amendment. No recent cases directly affect the authority of that decision. Yet it must be evident that its correctness is brought in question by the disintegration of the old concept of state action, at least in so far as it affects facilities which are licensed by the state or locality.114 The effect of the Covenant on this problem is not too clear. Article 20 asserts that "all are equal before the law" and that "everyone shall be accorded all the rights and freedoms defined in this Covenant without discrimination." By itself, this clause would hardly seem to furnish greater protection than is afforded by the present conception of state action. However, Article 19 provides that "Everyone has the right to freedom of association with others." It is possible to read this as banning discriminatory denial of access to public places where people meet, although it is not clear that this was intended. The same doubts arise in connection with the impact of these clauses on the state practice of segregating races while offering ostensibly equal facilities to both groups.' 115 This practice is now being challenged under the equal protection clause of the United States Constitution.116 A realistic appraisal of the situation in the world today makes it seem unlikely that Articles 19 and 20 will be construed as involving a frontal attack on the practice of segregation. If they should be so construed, adherence to the Covenant might substantially enlarge the scope of protection which the Federal Government may afford against racially repressive practices.

Today's conflict in the United States over civil rights is about the exercise rather than about the existence of power; it is more political than constitutional. So, too, the greatest effect of adherence to the Covenant will be political. What will be most important, if we ratify, will be the legal obligation we assume to the world to hasten our lagging steps toward the full recognition of human rights which, we so insistently proclaim, makes the democratic way of life the right way for the world.

One thing should be noted by those who believe that the mere fact that there would be some accretion of federal power should keep us from ratifying the Covenant. A good part of the world may, perhaps, decide to go ahead without us. If it does, there will one day be an international law of human rights which Congress will have full authority to enforce under its express power "To define and punish.... Offenses against the Law of Nations."117

Dr. Charles Malik, Minister of Lebanon in the United States and Rapporteur of 113 109 U. S. 3 (1883).

114 It may be necessary to distinguish between licenses generally and those which confer a franchise. See Madden v. Queens County Jockey Club, 296 N. Y. 249, 72 N. E. 2d 697 (1947). Watt and Orlikoff, supra note 91, at 39-40, express the opinion that the Civil Rights Cases are likely to be overruled.

115 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948).

116 See Sweatt v. Painter, No. 667, October Term 1948, United States Supreme Court, continued to October Term 1949, No. 44.

117 Cf. United States v. Arjona, 120 U. S. 479, 487-488 (1887).

the Human Rights Commission, concluding his summary of work of the Commission at its recent session, said:

Either there is a common morality about man which can be codified and not only respected but also actually observed under a rule of law, or we are on the verge

In the same statement he posed a question:

of chaos.118

Are those, whose culture and tradition contain at their core the truest conception of human dignity, so encumbered and distracted by the contradictions and pressures of their own civilization that they can no longer lead in the active realization, under international law, of a well-articulated, authentic conception of man?

The proposed Covenant puts this question directly before the American people. They must decide now how they want to answer it. There are risks, no doubt, in asserting leadership through participation in new institutions like the Covenant. They should be fully explored and carefully weighed. But the American people can make the decision; their Constitution does not foreclose the issue.

118 Malik, supra note 5, at 6.

INTERNATIONAL PROPOSALS AFFECTING

SO-CALLED HUMAN RIGHTS

FRANK E. HOLMAN*

During this last year, as President of the American Bar Association, I have spoken on several occasions regarding the various proposals sponsored by the Economic and Social Council of the United Nations with respect to so-called "human rights." I say “so-called” because the phrase “human rights" is of recent usage and as yet without any adequate or accepted definition. The sponsors of the international human rights program would have this phrase include not only basic rights affecting life, liberty, and property, as heretofore known to lawyers, but also a whole category of social and economic benefits. The Charter of the United Nations refers to "human rights and fundamental freedoms," but without specific definition of what is comprehended or intended by these terms.

Under the terms of the Charter the Economic and Social Council is empowered but not required to "make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all."

In accordance with this power to recommend, a Commission of Human Rights, acting as a sub-division of the Economic and Social Council, promulgated late in December, 1947, a so-called Declaration of Human Rights and a so-called Covenant on Human Rights-two documents. The Commission announced that the Declaration was not to be legally binding on the member states but only to be a declaration of ideals to which the peoples of the world might aspire. The Covenant, however, when ratified by the member nations in the form of a treaty was to have the force and effect of law.

Although, as indicated, it was stated that the Declaration was not to be legally binding, Mrs. Roosevelt and other members of the Commission soon asserted in the United Nations Bulletin, an official publication, that it was, nevertheless, to be treated as an “authoritative interpretation" of the provisions of the Charter.

The personnel of the Commission that produced these two documents is of vital interest to all Americans. Mrs. Roosevelt, as Chairman, was the sole United States representative. It should be pointed out in passing that she is not a person trained in legal draftsmanship, but primarily a social reformer. Australia's representative was Col. William Roy Hodgson-a military man and a person whose experience was largely confined to government service. The United Kingdom's representative was Mr. Charles Dukes-a trade unionist by profession.

These three were the only Anglo-Americans or representatives of English-speaking peoples on the Commission of eighteen members appointed to draft a Bill of Rights Member of the bar of Washington; President, American Bar Association, 1949-1950.

for the world including the people of the United States. Canada had no representative, but nevertheless three Russians were put on the commission-Mr. Alfanasi S. Stepanenko, Byelorussian Soviet Socialist Republic, Mr. Michael Klekovkin, Ukrainian Soviet Socialist Republic, and Mr. Alexander E. Bogmolov, Union of Soviet Socialist Republics.

At first there was something of a mystery as to the reason for two documents. It was said that some nations though willing to join in a declaration of principles regarding so-called Human Rights, might not be ready to commit themselves by a treaty obligation to put such rights into force and effect as law. The whole idea of two documents undoubtedly stemmed originally from the hope that the Russians might join in a declaration of ideals but might not join in a formal treaty. It happened, however, as it always does when we undertake to appease the Russians, that Russia would not even join in the Declaration as finally drafted, and that the policy of appeasing Russia, both in the matter of having two documents and in the matter of the loose phrasing of the Declaration and of including therein social and economic benefits and bounties, brought no practical result so far as Russia was concerned.

At all events, to get on with our story in proper sequence, early in 1948 the Commission announced that the Covenant would be held in abeyance until the Declaration was revised and completed and approved by the General Assembly of the United Nations. Thus, the Declaration went through a series of revisions during the course of last year. Since the Commission was meeting in Paris, by the time each revision was available in this country for study and consideration, further revisions and amendments had occurred in Paris. Thus the Declaration was passed last December in Paris when there was no copy of the final draft available in this country to responsible organizations like the American Bar Association— not even the State Department of our own government had a final copy in this country before approval by the General Assembly of a document which, as to our basic American rights, is nebulous and ambiguous and the latter portion of which sets up a collectivist concept of government for all the peoples of the world including ourselves.

Before attempting to discuss this extraordinary document in any detail it is important to recall clearly that the American concept of a Bill of Rights is that it is a "Bill of Prohibitions" against the encroachments of government. One of the basic principles upon which our government was founded is the idea that men are endowed by their Creator with certain natural and inalienable rights. Never before in history had a government been so organized. Theretofore, governments had granted individual freedom to the citizens if forced to do so or if so inclined, but our forefathers said in effect, "We are endowed by our Creator with certain natural rights and freedoms and the only reason for having a government is to protect these rights and freedoms which we already have." On this basis, our forebears listed in the Constitution those specific functions which they authorized the Fed

eral Government to handle and they forbade that Government and its officials to do anything not authorized by the Constitution. To attempt to make this doubly sure the people added a Bill of Rights-really, as already indicated, a “Bill of Prohibitions"-specifically prohibiting the Congress making laws impairing these rights. And then in an effort to make absolutely sure that no government official would in the future misinterpret the proposition that the Federal Government was the servant and not the master of the people-the people added two important overall restrictions that:

1. "The enumeration... of certain rights shall not be construed to deny
... others retained by the people”—and

2. "The powers not delegated to the United States by the Constitution
are reserved to the States or to the people."

Thus, the traditional American theory of government was and is that the rights of the people as to their individual freedoms are personal and inalienable and are not subject to change or modification unless the Constitution is changed by the people themselves. Once a contrary theory is adopted-for example, if we Americans concede that the United Nations Assembly or any other legislative fiat (even the ratification of a treaty by the Senate) or even enactments by Congress or a state legislature can be the source of individual rights—then it follows that the same legislative fiat which confers these rights may withdraw them, limit them, or condition them. It is this basic American concept that is being ignored by the United Nations Commission, and by our State Department. Thus, the whole International Bill of Rights program is predicated on the un-American theory that basic rights can be created by legislative action and that, along with basic rights, the social and economic well-being of our citizens may be defined, fixed, and limited by international declaration.

Though the Russians did not see fit to approve the Declaration, and Mrs. Roosevelt and our State Department have made much of this and have even suggested that only the Russians and the American Bar Association are opposed to the International Bill of Rights program, the Russian refusal to approve was occasioned by objection to the inclusion and exclusion of specific matters-not to the concept that rights can and should be conferred by legislative fiat, for this is the very cornerstone of the Russian philosophy of government. Nor did Russia object to the inclusion in a Bill of Rights of social and economic benefits and bounties to be conferred by legislative fiat. Russia objected, among other things, to any provision such as appears in our own Declaration of Independence, that man is endowed by his Creator with certain inalienable rights. Any reference to God was anathema to the Russians. This matter was debated and in the first draft of the Declaration a compromise was sought on the basis that man was endowed "by nature" with rights. But in attempting to appease the Russians, the Commission finally took this phrase out, with the result that the State Department and our government has now turned