THE UNITED NATIONS: STILL A FORCE FOR PEACE*
| Published date | 01 January 1989 |
| Author | Rosalyn Higgins |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02593.x |
| Date | 01 January 1989 |
THE
MODERN LAW REVIEW
Volume
52
January
1989
No.
1
THE UNITED NATIONS: STILL A FORCE FOR
PEACE*
I shall speak about integrity in relation to human rights treaties in
two senses
of
that term. First, I shall explore some practices and
problems, seemingly diverse, that all touch upon the integrity
of
the treaty itself. I mean by this the protection
of
the treaty as a
coherent whole, self-sufficient by virtue
of
its own terms. Then
I
will address some current difficulties exercising states in relation to
human rights treaties, and will hope to show that in determining
how to deal with these difficulties, questions
,of
integrity-in a
different sense
of
the term-arise too.
In addressing this dual facet
of
integrity, I shall refer mostly to
the International Covenant on Civil and Political Rights. The
United Kingdom is a party
to
the Covenant, as well as to the
better known European Convention on Human Rights, and is
under an obligation in international law to provide the rights there
guaranteed to all within
its
jurisdiction. And for very many states,
having no regional human rights instrument, the Covenant (which
entered into effect in 1976) stands at the apex
of
human rights law.
I have the honour to sit as the United Kingdom member
of
the
Human Rights Committee
of
the Covenant. Our task-18 jurists
from diverse legal, political and social systems-is to monitor and
encourage compliance with the Covenant. We do this in two main
ways: through the critical examination
of
reports submitted by
states; and through the hearing
of
cases against states, who under
an Optional Protocol to the Covenant, allow the bringing
of
individual applications. My remarks will allude to both aspects
of
our work.
The rights covered in the Civil and Political Covenant are these:
self-determination; right to life; prohibition against torture, cruel,
inhuman
or
degrading treatment or punishment; prohibition
of
slavery; security
of
the person; treatment with humanity
of
persons
deprived
of
their liberty; non-imprisonment for debt; freedom
of
movement; procedural guarantees for aliens upon expulsion; fair
trial; non-retrospection
of
penal sanctions; entitlement to recognition
The
Seventeenth Chorley Lecture dclivcred at the London School
of
Economics,
June
1, 1988.
1
2
THE
MODERN
LAW
REVIEW
[Vol. 52
before the law; privacy; freedom
of
religion; freedom of expression;
prohibition
of
propaganda for war and incitement to racial
or
religious discrimination, hatred
or
violence; peaceful assembly;
freedom
of
association; the right to marry and found a family;
certain rights of the child; the right to take part in public affairs,
with periodic elections by universal suffrage; minority rights; equal
protection before the law and equal protection
of
the law; and the
right to enjoy all these rights without distinction as to race, colour,
sex, language, religion, political
or
other opinion,
or
status.
Is
there a common understanding of the rights in the Covenant?
I
refer,
of
course, to the problem of whether there can be a
universal understanding
of
specific rights which are contained in an
international
instrument. The parties to human rights treaties are
states; the human rights fall in the first place for interpretation by
the governments
of
those states; and are to be applied, on a day to
day basis, within those states. Within a regional human rights
system there is likely to be a certain homogeneity
of
practice and
understanding. Thus, the European Convention on Human Rights
system operates among Western European democracies, who can
be expected
to
have certain common understandings about the
meaning
of
the rights that they have guaranteed. Even
so,
the
difference between the civil law and common law systems has led,
for example, to different perceptions of what constitutes an
unreasonable delay in the bringing on
of
a criminal trial.’ Reasons
of legal history have led
to
somewhat varying views about the
place of such British notions as blasphemous libel and contempt
of
court within the Convention guarantee of free speech: and reasons
of
religion have made impossible any common European view on
the beginning
of
life and any coherent jurisprudence on the right
to
life
provision^.^
How then can we expect a common understanding
of the International Covenant, an instrument to which some
90
states are parties-states with vastly differing legal systems, political
systems, at different stages of development, with varying religions
and cultures?
Put this way, will not the interpretation
of
the obligations
imposed under the Covenant necessarily vary?
Is
there any one
“correct” interpretation
of
what is required by the terms
of
the
Covenant? This question has been the subject
of
a vigorous debate
and academic exchanges. The most articulate and interesting
exchanges in the literature have been those
of
two former colleagues
of
mine on the Human Rights Committee, Bernardt Graefrath
of
the German Democratic Republic and Christian Tomuschat
of
the
‘
Scc
Neumeisler case,
1
E.H.R.R. 91;
Wemhoff
Case,
1
E.H.R.R.
55;
Siogmuller
’
Scc
Bruggemann and Scheulen
v.
Germany,
3
E.H.R.R. 244.
casc,
1
E.H.R.R.
155.
SCC
Gay News and Lemon
v.
U.K.
5
E.H.R.R. 123.
To continue reading
Request your trial