DECLASSIFIED A/ISS/IPS, Department of State E.O. 12958, as amended December 18, 2008
INTERNATIONAL LAW AND HUMAN RIGHTS Developments in international law since World War II have made obsolete the old concept that a State's treatment of its own citizens within its own borders matters of human rights and fundamental freedoms lies essentially within its Even before World War II that old domestic jurisdiction. concept was giving way before guarantees for the peo p le of mandated territories, persons facing involuntary servitude and others. Today the prevailing legal view is that the principles of sovereignty and non-intervention in internal affairs do not constitute a legal bar to a State's international recponsibility for any matter falling within the scope of the duty to respect and p romote human rights and fundamental freedoms. Accordingly, there is now ample legal justifica-tion for diplomatic repres ntaionstoaStaeconcerni g its treatment of its own nationals, where such treatment violates minimu standardsofinternational aw. UnderthiNaosCremboligdtprmeunvsalctfor,dbevanshumrigtdfnaelomsrwithudconas does not further prescribe how to fulfil that oblsex, igation in language or religion. However, since the Chater race, respect to particular violations by others, there are usually complex questions of policy, tactics and law to be considered in deciding when and how the United States can best seek to discharge that obIigation in a particular case consistent with its commitments to other goals, including that of maintaining international peace and security. Such questions include the seriousness of the violation, the various options for United States initiatives, and the co nsequences of inaction. Among the o ptions for considera tio n are:
(a)
Bilateral and multilateral efforts to clarify the facts and to cause there to be careful consideration of the whole matter b y the governments concerned especialy any government which might be in violation before official positions become more deeply entrenched. Such efforts ty pically involve quiet diplomatatic representation, and the procedures of the United Nations .and Inter-American Human Rights Commission, of the United Nations High Commissioner for Refugees and of important private international bodies such as the International Committee of the Red Cross and the International Commission of Jurists.
DECLASSIFIED A/ISS/IPS, Department of State E.O. 12958, as amended December 18, 2008
(b) Further bilateral efforts, including more forceful or formal demarches, public statements of concern or condemnation, withdrawal of the principal diplomatic representative and partial or total suspension of aid economic or milit ary; (c) Further multilateral efforts, including resoluthe Organization of American States, inquiries and tions ofof organs important offinancial the Nations and resolutions the specialized agencies, hoc arrangements for United Nationsmandatory or Organization of American Staes conciliation, mediation, observation investigation, refereces toadthe International Court oforJustice, suspension of international orUnited economic assistance, voluntary embargoes and, in extremis, economic sanctions.
Historical Background beginnings ofitofiesmodern international human rights ofSince protection. 16th iprotected ngtions Woraliens ld Wartheand I,man thave hreligious e rstandards igDeprivation htand sunder botenjoyed h ofwoman mifreedom norinternational andthe hprecedent-making e inhabiunder tathe ntsanct s ofNumerous edcentury ter law, iThe tothe riestreaties enjInternational oofon. yed iconvennteFollowrnathave ionalthe protection. ofof tfrom liberty through practice of slavery came ion. rights ofright working came thmandatand protection Labor Organization. The exostence limits of ofthe ofdiscussion. humnaitarian interventions were the subjects learned The adoption of the United Nations Charter brought further fundamental Throughfreedoms. it,tomember States undertook anwas international legal obligation respect andand promote human rights andonchange. fundamental A similar obligation imposed Romania, Bulgaria, Hungary, Italy (then non-member States) through the post-war Peace
Treaties, to which we and the Union of Soviet.Socialist Republics are parties. The adoption of the Universal Declaration of Human Rights in 1948, and continuing multilateral effo r ts thereafter, gave that obligation substantiv e definition. In particular, the United Nations General Assembly adopted and opened for signature in 1966 the International Convenants on Civil and Political Rights and on Economic, Social and Cultural Rights. The rapid post-war expansion of the international law of
human rights and fundamental freedoms took place against a backdrop of traditional sensitivity on the part of govern ments concerning their sove r eign prerogatives, particularly
DECLASSIFIED A/ISS/IPS, Department of State E.O. 12958, as amended December 18, 2008
their exclusive "domestic" right to treat their own citizens in their own territory largely as they chose and without being subject to outside interference..The principles of "sovereignty" and "non-intervention in domestic affairs" were also traditionally used as screens by States seeking to avoid international responsibility or inquiries regarding torture, political or religious repression, racial discrimination, denials of fair trial, and the like. When the United Nations Charte r was first adopted, some commentators viewed its human rights provisions as intended to establish something less than a legal obligation. But. Repect the weight of le g al authority is now to the contrary.
for and promotion of human rights and fundamental freedoms have come to be legal generally recognized as among the is principal international duties of on States. THis confirmed by the United NAtions eclaration Priciples of International States in Accordance with the Charter of the United Nations, which was adopted by concensus (including the Union of Soviet Socialist inof 1970. Additional evidence is found in 1503 theRepublics) establishment by Economic anda Social Council Resolution (XVVIII) May 27, 1970 of now generally accepted ations attested revealing procedure violations a for consistent of United human Nations pattern rights. consideration ofSimilary, gross and European reliably of situStates have place human rights violations in the hands of a
European COmmission and eventually a Court of Human Rights, while the American Republics have entrusted them to an Inter-American Human Rights Commission.
Illustratie of the prevailing view, Oppenheim, a leading
authority on international law. recognizes in his discussion of extent humanitarian the that human intervention that to and fundamenta lrights freedoms have become a legal obligation, they cease to be a matter which is essentially within the domestic jurisdiction of States, The United States adopted this view in the 1959 Camp David talks, when President Eisenhower and Secretary of State Herter pursued questions regarding the Union of Soviet Socialist Republic's treatment of Soviet Jewry in discussions with Premier Khrushchev and Foreign Minister Gromyko. Again, by. consensus the Union of Soviet Socialist Re p ublics and the United Stat es being present, the Chairman of the United Nations Hu man Rights Commission on March 1 cabled the Government of Chile. calling on it to allow citizens and foreigners seeking asylum to leave the country in the course of calling generally for cessation of human rights violations.
DECLASSIFIED A/ISS/IPS, Department of State E.O. 12958, as amended December 18, 2008
A further problem, of course, is to determine how the obligation may be dis charged and the reach of the human rights and f undamental freedoms to be respected. The answers to these questions have to be de termined in the t raditional fashion of the law. First, of cou rse, there is the guidance provided by Article 38 of the Statute of the
Court of Justice. In deciding intelaw rnational the Statute says to apply international conventions establishing rules expressly recognized by the
d isputes
Int ernational in accordance with
contesting States, international custom evidencing law, andsubject teaching of 1949 the most highly qualified publicists. Numerous international convetions may be relevant, depending on matter and the parties. For example, an overwhelming majority offor states are parties to the Geneva Conventions both of internal visions which and as spell treaty Common international out obligations human law. Article SImilarly, conflict. rights but 3 example, appear also protection SUch judicial astogeneral apartheid the probedecision 1971 binding customary Advisory is may not a violation only beOpinion international relevant. as of human of FOr the rights. International Court of Justice on Namibia stands for the preposition that
In practice, of course, and this is important, States almost always consult teh Universal Declaration of Human Rights That Declaration, having passed the General Assembly quarter of a century ago without aits negative vote and with only 8 abstentions, and having been referred toawidespread as in numerous conventions and resolutions, partakes as law international custom. In additiona, its acceptance is too, evidenced by the inclusion in whole orauthoriin part inand the constitutions and legislation ofand many States. Increasingly, as their adherents increase their use as tative authoritative evidence of meaning of Charter terms. as authoritativer eference points grows, the International • C onvenants on Civil and Politica l and on E conomic, Social and Cultural Ri g hts assume a position of great authority. Finally, with respect . to what is required in p articular s ituations to discharge a State's there are inevitable d ifferences as to how faro bligation, and how quickly States must move. S ituations will vary from those (a) where there is a virtually absolute obligation for imme c diate and com lete. ompliance - as when a State is violating the rights of pits own citizens through torture, g murder or the like through those (b) where certainenocide, procedural g uarantees may
DECLASSIFIED A/ISS/IPS, Department of State E.O. 12958, as amended December 18, 2008
be modified or su for so long a: and in such ways as are absolutely spended requiredonly by an i se threat to national curity, and to others (c) where mmediate the are open, av ailable and pr q uestion is what means omising for a State to use its best efforts to promote respect by another State of the na tionals of the latter. T he wide range of options for action has already been outlined.
ared p re p and Charles Runyon (L/HR) and approved by Mr. in draft, by Messrs. S Aldrich and, chwebel and Hewitt. The Moscow paper was attached by Mr. Maw to his recent In m emorandum to Mr. gersoll on Section 32 and human rights.]