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Declaration also deals with rights such as that to nation-
ality, to marry and to found a family, to take part in
government, to education and to an adequate standard
of living which in itself, implies freedom from hunger
and the right to health.
Though having no legal force even in international
law, the Declaration as a common standard for all
nations must be taken to have exerted a considerable
influence on the world. It has been used as the justifi-
cation for various international actions by the U.N.
It has inspired many international agreements both
inside and outside the world body and it has influenced
national constitutions and laws adopted since 1948. The
United Nations gives a list of countries in whose consti-
tutions devotion to the ideals of the Declaration are
expressed : Algeria, Burundi, Cameroun, Chad, Demo-
cratic Republic of the Congo, Republic of the Congo,
Dahomey, Gabon, Guinea, Ivory Coast, Malagassy
Republic, Mali, Mauritania, Niger, Senegal, Togo and
Upper Volta. Two things strike me about this list.
First, with the exception of the Republic of the Congo
which was Belgian, they were all French colonies and
their constitutions would follow the French tradition of
mere declarations of rights but without any enforce-
ment machinery.
Secondly, they are all African, and with few excep-
tions, the history of Human Rights in Africa post-
independence has not been happy.
Nonetheless as distinguished an authority as Mr.
Sean MacBride has repeatedly called the Declaration
the most important document in the history of Human
Rights and indeed of Man. But as the German consti-
tutional lawyer, George Jellinek once observed, the
political history of ideas must not be political literary
history but must always be considered in relation to
the history of constitutional realities. "Ubi remedium
ibi jus" may not be a desirable principle on which to
build a dynamic legal system but the availability of a
remedy is the test of a system's effectiveness.
I leave for the time being the United Nations who
were to spend the next eighteen years drafting the
second part of the International Bill of Rights—the
Covenants, and turn to Europe.
Origins of the European Movement
Perhaps it was inevitable that Europeans after the
war should have an immediate sense of the link between
peace and the observance of human rights. Certainly
the pioneers of the United Europe Movement were in
no doubt that this was the basis on which a successful
unity would be built.
The Congress of Europe held at The Hague in May
1948 with 713 delegates from sixteen countries (includ-
ing Ireland), laid the basis for the formation of the
Council of Europe. In the "Message to Europeans"
issued at the close of the Conference, the delegates
declared.
"We desire a Charter of Human Rights, guaranteeing
liberty of thought, assembly and expression as well as
the right to form a political opposition."
"We desire a Court of Justice with adequate sanction
for the implementation of this Charter."
The Statute of the Council of Europe was signed in
London a year later on 5th May 1949. It came into force
on August 3rd of the same year. Article 3 of the
Statute laid down the conditions of membership of the
Council. They include acceptance of the principles of
the rule of law and enjoyment in the member's territory
of human rights and fundamental freedoms.
The European Convention
At the first debate of the Assembly of the new organ-
isation, the question of a European Charter of Rights
arose. It was decided to refer the question to the Com-
mittee on Legal and Administrative Questions. They
took the United Nations Declaration as their starting
point and listed ten rights, which they felt should be
guaranteed. For the next two years, drafts of a conven-
tion were referred from Committee to Assembly, from
Assembly to Committee of Ministers. Throughout this
process can be seen the enthusiasm of the Assembly for
the idea of an international guarantee of enforceable
rights being checked by the political caution of the
Committee of Ministers. There were many compromises,
even then it was not possible to get an agreed text, and
in the end it was really the Committee of Ministers'
draft that was signed in Rome on 4th November 1950.
The Convention was considerably weaker than many
had hoped for and in particular the right of individual
petition and the acceptance of the jurisdiction of the
Court were optional. Sir David Maxwell-Fyfe (later
to become Lord Chancellor Kilmuir) tells in his memoirs
how the then President of the Consultative Assembly,
Paul Henri Spaak, announced the signing of the Con-
vention. "The Convention of Human Rights will be
signed by fifteen countries at 3 p.m. at Palazzo Barbe-
rini. It is not a very good Convention, but it is a lovely
palace."
Perhaps to the vision of a Spaak, a Monnet or a
Schumann the Convention was but a poor step, but to
us, looking back, it appears as an important and prom-
ising development.
The parties to the Convention pledged themselves
to secure to everyone, not just citizens, the rights and
freedoms defined in the Convention. These were the
right to life, freedom from torture, freedom from slav-
ery or servitude, the right to liberty and security of
persons, to a fair trial in the determination of one's
civil rights and obligations and on any criminal charge,
freedom from ex post facto legislation or penalties, the
right to respect for private and family life, the right to
freedom of thought, conscience and religion, the right
to freedom of expression, peaceful assembly, association,
to marry and to found a family. Those whose rights
were violated were to have an effective remedy before
a national authority and the rights and freedoms guar-
anteed were to be secured without discrimination on
any ground.
In time of war or other public emergency threatening
the life of the nation, any party could derogate from its
obligations, but only to the extent strictly required by
the exigencies of the situation and provided the meas-
ures were not inconsistent with its other obligations
under International Law. There can be no derogation
from the articles on torture, slavery or ex post facto
legislation. It was decided in the case of
Lawless v.
Ireland
that the derogating government must satisfy
the Commission and the Court of the seriousness of the
situation. It should be observed that this has brought
about a restriction on the practice if not the law on
internment under the Offences Against the State Acts
in this jurisdiction.
However, it is not in the rights guaranteed but in the
measures it contains for their implementation, that the
originality and value of the Convention lie.
The organs of the Convention
Two organs were set up, the European Commission
and the European Court of Human Rights. Any State
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