Taiwan Today

(Continued from the July Issue) The Concept of International Concern It might be argued that the protection of human rights is purely of domestic concern, in the light of the provisions of Art. 2 para. 7 of the Charter, and that every member - state is the sole judge of its own cause. This however can hardly reconcile with the undertaking in Art. 56 whereby all member states pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of universal respect for human rights and fundamental freedom without distinction as to race, sex, language or religion. It follows that the domestic clause can only be invoked under circumstances not incompatible with the measures under Chapter VII. It is true that matters of human rights are largely concerned with the relationship between the state and its citizens, but will be an international issue when the national state abuses its right to such extent as amounts to a threat to peace or breach of peace. The malpractices of the totalitarian states in the pre- war period have amply demonstrated painful experience with which the world was confronted. International peace was gravely endangered when Hitler's Third Reich declared war on freedom and religion, subjected hundreds of thousands of people to persecution, forced labour and a status analogous to slavery. The frantic effort to strengthen the state power at the expense of the individual's rights is a portent leading the state to garrison prison control. The impact of despotic measures, which drive thousands of people to seek asylum in other countries, constitutes a charge upon the world, and necessarily endangers international peace. Peace should be interpreted in a wide sense, which includes not only the condition of peace, but also a reduction of severe frustrations that drive men to violence. In this context and in the light of the past experiences, it follows that the infringements on human lights may well be regarded as coming within the province of Chapter VII of the Charter, thus lifting matters out the realm of domestic jurisdiction, This reasoning is well supported by the advisory opinion of the Permanent Court of International Justice on the Tunis-Morocco Nationality Decrees (8), when it pronounced that the right to use discretionary power by a state is restricted by treaty obligations, which it may have undertaken towards other states. If the foregoing argument is correct then the Security council will be able to make recommendations and take appropriate measures to implement international peace and security. This may include the right to call upon the parties concerned to comply with provisional measure when it sees desirable, to enforce collective security short of armed force involving severance of diplomatic relations; economic rela­tions and complete or partial interruption of rail, sea, postal, telegraphic, radio or other media of communications, and when all of these prove inadequate it may have recourse to military action. Art. 2, para.7 does not provide any criterion to determine the constituent of domestic matters. In fairness to justice and harmony, the cause should be referred to all impartial international agency for decision, preferably the Commission on Human Rights or the International Court of Justice: The suggestion is supported by precedents which have already occurred at the international level. The General Assembly adopted a resolution in December 1946 on the Indian complaint that South Africa was denying human rights to the Indians within its national boundary. The Assembly set aside the African argument of domestic matters, and declared the matter to be of international concern. In the Tunis and Morocco case, the World Court was called upon to give an opinion on whether the dispute between France and Great Britian as to the Nationality Decree issued in Tunis and Morocco (French Zone) and their application to British subjects, is solely a matter of domestic jurisdiction. The Court, in upholding the British argument, pronounced that whether a matter is within the domestic jurisdiction is "an essentially relative question;" it depends upon the development of international relations. This view was shared by the same court in the Polish Nationality case, the German Settlers case and the Danzig, Constitution case (9). When a state undertakes international obligations with respect to nationality matters, any dispute arising therefrom necessarily constitute international concern. It has been suggested that ill-treatment of citizens within the national boundary may be analogous to an international nuisance, as persons are held responsible for obnoxious fumes and smells polluting the air of neighbors under Ryland V. Fletcher. At the international level, when the repercussion of abuse of state authority transcends the national boundary, the wrongdoer cannot demand exemption from the jurisdiction of the international court under the aegis of domestic matters. Aside from the legal technicalities, the nation states should, in the interest of international peace and national security, accord such pro­tection as a matter of policy to the oppressed but innocent individuals. With a view to preventing the recurrence of fanatic and pathological measures resorted to by totalitarian states, the democracies are forced to work out measures of protection with the collective effort of all. In the light of the present crisis of democracy, nation states would undoubtedly work unremittingly towards that end. 5. Alternatives In the course of implementing the treaty provisions, the international organization has been confronted with the problem of violations by the signatory states. The British Delegation suggested the penalty of expulsion from the international organization. The effectiveness of such penalty is doubtful. It was recalled that in the final stage of the defunct League, while the Soviet Union was expelled on account of its invasion of Finland, she still exerted poten­tial influence behind the scents of international action. On the other hand, the expelled member is released from the obligation under an international undertaking, and thereby has a freer hand in the perpetration of international offence. This was the very reason that the ex­pulsion clause was purposely deleted from the Charter with the support of the majority at the San Francisco Conference. Nor is it likely that in the present stage of international relations the nation states would accept the compulsory jurisdiction of the international tribunal before which the individual may be arraigned. As previously intimated, the exercise of jurisdiction by municipal tribunals over their own nationals is susceptible to the abuse of such right, and defeats the purpose of universal protection. It is especially true, as already indicated, that the judiciary in totalitarian states is reduced to servility by the political regime, and the infringement of human rights is often ordered by executive authority. For the consideration of policy, suggestions might be made along the following lines: A. International Supervision and Control by Public Opinion If a signatory state willfully, deliberately or negligcntly fails to live up to contractual undertakings, the member - state can call the atten­tion of the General Assembly to the violations. The Assembly may open the discussion and make reconcidernration to the state concerned on the basis of the findings and comments submitted by a special organ, such as the Com­mission on human Rights. In this respect it is desirable to create an international supervi­sory organ, patterned after the Permanent fandltes Commission, to be vested with the power to elicit periodic information from mem­ber states concerning their implementation, to publish findings and comments, to distribute to press, radio, film, television throughout the world, and the last but not the least, to be empowered to send representatives or investi­gation on the spot. As the international relations of our society arc based upon a system of power politics, the mobilization of public opinion is the effective weapon to prevent the breach of treaty obligations. Public opinion remains ineffective, unless effectively organized, and the work of organization should be one of the main tasks within the framework of the supervisory organ. The fruitful experience of the Permanent Mandates Commission indicates that no mandatory power was ever apa­thetic to the findings of international supervisors or unresponsive to its recommendations. Although this may prove useless in relation to totalitarian states which are characteristically indifferent to public criticism and moral repre­hension, they may lend themselves to reprisal rough diplomatic and economic pressure by democratic states. Insofar as free countries are concerned, the echo of public opinion is significant; resounding public excoriation is the powerful weapon of persuasion without coercion. B. International Adjudication: Co - existent with public opinion may be the trial of officers by international tribunals. This can only be achieved when the member states are willing to surrender a part of their sovereignty. Reification may be developed along the following lines: (a) The creation of a Human Rights Com­mission (different from the existing one of the U.N.) to consider the disputes between the states concerned relative to the observance of the provisions of the Covenant. The Commission will hold hearings, and the state concerned will have the right to the represented at these hearings and to make comment. On legal ques­tions, the Commission is authorized to request advisory opinions from the International Court of Justice. The joint proposal of the United Kingdom and the United States was similar to this (10). (b). The Governments of Guatemala, France and India proposed the creation of an international commission to consider petition filed by individuals and organizations, as well as by states in respect to violations of the Covenant provisions (11). (c). The creation of ad hoc tribunals, such as an International Court of Human Rights as proposed by the Australian Delegation The Human Rights Commission as suggested by the Joint Proposal is presumably modeled after the Permanent Mandates Commission. The disadvantage of the Proposal lies in that its jurisdiction is restricted to the disputes which occur between the states, and it will not be competent to handle complaints of one indi­vidual against another. Punishment of the individual wrongdoer services to guard against further infringements by private individuals. This was the basic philosophy underlying the Nuremberg Trial, before which the major war criminal were arraigned. The experience after the First World War in entrusting the trial of war criminals to the German municipal tribunals, which subsequ­ently relegated the punishment to a handful of persons, called for the creation of an interna­tional tribunal for the purpose of justice. The Trial has modernized the traditional rules and removed the barrier which masked the indivi­dual offence under the act of the state. The Joint Proposal, furthermore, fails to provide for remedy in relation to the perversion of justice in trials for the violation of human rights. The French - Guatemala - Indian Proposal is analogous to the protection of minorities under the League's Council, with which private individuals were allowed to file petitions. As this proposal stands, the Commission is going to "consider" the petitions; unfortunately, its finding will partake of the nature at a recom­mendation which helps little in convicting the individual offender and to set up a precedent for international jurisprudence. It is therefore desirable to have a court competent to take cognizance of various infringements. To be realistic, we are not unmindful of the opposition which will come from the states, as they are traditionally reluctant to surrender any of its national jurisdiction. The only way open for reconciling the conflicting demands lies in modeling the international tribunal after an appellate division. The International Prize Court, as envisaged by the abortive Convention of 1907, was, empowered to "review" the judgment rendered by national tribunals. The Court was to award damages to the injured party without reversing the municipal judgment. In this way, it could reconcile the con­stitutional difficulties of some countries whose supreme judicial power resides in the municipal court. The canon of exhaustion of local remedies would apply to the injured party qua alien or qua individual. Art. 6 of the Genocide Convention likewise visualize the creation of an international penal court, whose jurisdiction is to be subject to the option of the parties concerned. It is this optional clause that its chief proponent, Mr. Lemkin of Yale Law School, considered not revolutionary in nature (12). However, it may well be predicted that in the light of current international practices, the signatory states will only in very excep­tional cases submit the cause to the trial of the suggested tribunal. If the final decision rests in the hands of the national tribunals, it is merely chimerical to expect a fair trial in totalitarian states. It is true that Art. 8 provides for the safe­ guards which permit the signatures to call upon the competent organs of the U. N. to take such action under the Charter as is appropriate for the suppression of genocide. This however re­fers to the suppression of genocidal acts, it does not intend to comprise the suppression of the abuse of justice as a result of such act. It follows that it leaves little remedy to the injured party if the national court disguises a nefarious offence. The suggestion of developing an international tribunal into an appellate court would serve to plug the hole which can presently be used as a way of escape. The suggested international tribunal should be made a chamber of the International Court of Justice, since the preference for ad hoc tribunals may weaken the judicial power of the world court and retard its progress in developing into a relatively powerful judiciary in the world com­munity. It should be pointed out here that the creation of an international appellate division does not prevent the functioning of a human Rights Commission. The activities of the Commission should lay particular emphasis upon the appeal to public opinion and upon non-legal matters; modeled after the Permanent Mandates Commission. It collects data, publishes periodicals, and disseminates information to the press radio, film and other means of communications of the member states concerning the extent of its implementation, while the responsibility of the state and the offence of the individual wrongdoer should be decided by the suggested court. In this way, the protection of human rights will be reinforced by the synchronous weapons of both psychological appeal to humanity and judicial sanction against the recalcitrant perpetrators. (8) Frederick L. Schuman, International Politics. 4th Edition Permanent Court of International Justice, Advisor Opinion, Series B No. 4 (9) P. C, I. J. Series B, No. 7; P. C, I. J. Series, No.6; P. C. I. J. Series A/ B, No. 44 (10) Bull of State Dept. vol. xxi, No. 523, p. 8, July 11, 1949 (11) 43 American Journal of International Law 785 (12) Statement of Mr. Lemkain, see American Society of international Law, Proceedings, p. 65, 1949, discussion from the floor; Durward V. Sandifer, The International Protection of Human Rights, the UN System, Ibid.