Verbatim Record of the Thirteenth Meeting of the Drafting Committee of the Commission on Human Rights [Excerpt]
Verbatim Record of the Thirteenth Meeting of the Drafting Committee of the Commission on Human Rights [Excerpt]
20 June 1947 [Lake Success, NY]
Chairman: Eleanor Roosevelt
Secretary: John Humphrey
Rapporteur: Charles Malik
Chairman: Article 15: "Every one has the right to a legal personality everywhere. Every one has the right to contract marriage in accordance with the State. Every one shall have access to independent and impartial tribunals for the determination of his rights, liabilities and obligations under the law. He shall have the right to consult with and, eventually, be represented by counsel."
The United States delegation desires "eventually" to be omitted because a person should have the right to be represented by counsel from the beginning or from any time he desires representation. I think that is just a drafting change in the translation.
Mr Cassin (France) (Interpretation from French): In regard to the Chair's observations, I am sorry to advise the Chair that there are countries where, in civil proceedings, you could obtain counsel, and where, in criminal trials, you could not obtain counsel.
In France, a man who is brought before a court for a crime cannot send for a lawyer; he must be there himself. That is why we use the word "eventually". This does not have anything to do with the practices in other countries; it is only used in order to allow for the practice in my country.
The entire article is the result of the combination of three other articles because it had been observed, with reason, that the phrase "legal personality" was rather abstract, and that it was better to employ the two most important examples immediately; to wit, the contracting of marriage and the access to impartial tribunals. All human beings should have these elementary rights.
Chairman: May I just say that the word "eventually" does not literally translate le cas échéant.5 That is why the United States delegation believes there should be a better translation. That is the only word to which we object.
Mr. Wilson (United Kingdom): In the first place, I entirely agree with the Chair concerning the word "eventually". I believe we can work that out easily. However, I think, too, that the whole of that sentence—"He shall have the right to consult with and, eventually, be represented by counsel"—is much more appropriate to a convention than to this document.6 This is a means and not a principle. It is a means to ensuring a person a fair trial, and the fair trial is embodied in the previous part of that clause. I believe it is sufficiently covered and could be omitted here.
I am also rather worried about the second sentence: "Every one has the right to contract marriage in accordance with the laws of the State." All that in fact says, as it appears here, is that the State may make such laws as it desires to make concerning the subject of marriage. This is certainly not what we want to say. However, that is, in fact, all this wording implies.
I was in some doubt as to the exact abuse at which this clause was aimed until I heard what Professor Cassin said a few days ago concerning aliens being denied the right to marriage through the use of all types of technicalities. If that is in fact the abuse at which this is being aimed, again it appears to me to be much more a case of discrimination and should be dealt with on the basis of discrimination rather than by selecting one subject, however important it may be, for mention in a document of this kind.
The principle that applies to marriage—there should be no discrimination-is one that applies to an entire host of other matters as well: the right to enter into a contract of any kind, fairly and equitably.
I do not see, myself, the reason for singling out one specific instance in a case like this, important though it may be. In the second place, if we do single that out, I think it will have to be reworded in order to have something more definite than appears here.
Mr. Koretsky (USSR) (Interpretation from Russian): I want to dwell on the second paragraph in regard to marriage. I think, as does the representative of the United Kingdom, that this question can only be placed on the plane of non-discrimination. In the present form, if in accordance with the laws of the State, it might prevent marriage. Everybody knows that fascist countries did not permit marriage between aryans and non-aryans, for instance.
I shall not mention certain other laws at this moment which, in one form or another, under certain practices in certain countries, do not permit misogynation, for instance.7 It is therefore inappropriate to speak about the right to contract marriage as a specific right which must be expressed in the Declaration. I think at this point we can only speak of non-discrimination in the contracting of marriage. I have already called attention to the inappropriateness and even strangeness of a formula such as this in a declaration of human rights. It is natural, of course, that at a certain age human beings are wont to enter into marriage. However, I cannot agree with my colleague from the United Kingdom that marriage is a contract like any other contract. Unfortunately, in certain countries, marriage is still considered a deal. In my country such a view of this particular question has been rejected.
To sum up, it appears to me that this does not have to be mentioned in this form. That is my personal opinion.
Chairman: Speaking on behalf of the United States, I think we would like to have a little clarification on the phrase "everyone has a right to a legal personality." While that phrase may mean something to lawyers, I am fearful that it will not mean a great deal to the layman. Could you think of a way to change this expression so that it may be a little clearer to the layman?
Dr. Chang: (China): It is a very simple matter to adjust this Article, aside from paragraph 1 which needs clarification. Paragraph 2 may need to be reconsidered. There then remains the beginning of the first sentence and the second sentence may well be combined with part of Article 9. If we are going to re-draft Articles 8, 9, and 10, I should rather think the first sentence of the third paragraph of Article 15 may well be combined with some of the concepts there implied.
Rapporteur:8 With regard to the second paragraph, it seems to assume that a state has laws regulating marriage. This happens to be the case in many Western countries, but in many Eastern countries the state has absolutely nothing to do with marriage. Marriage is left entirely to the laws regulating religion. A particular phrase like this would be highly ambiguous in those countries and would lead to all sorts of confusion and misunderstanding. It would be highly objectionable in those countries where marriage is not a prerogative of the state or the laws of the state but purely of the religions of that country.
Chairman: From what has been said, I gather that the second paragraph could be completely omitted. As I understand it, most of us would be willing to omit the second paragraph and perhaps simply submit it to the Sub-Commission on Prevention of Discrimination and Protection of Minorities as a question that they have considered.
I would like to ask Professor Cassin if he could clarify the phrase "legal personality" so that it will be more understandable to the layman.
Mr. Cassin (France) (Interpretation from French): I should like to deal with the two items that have been raised, first of all, with regard to marriage. As a matter of fact, there is a phrase which has persisted in remaining in the text although it was not in the original French text, "the law of the State." In case of foreigners, several laws might apply, the law of the place where the marriage is considered, and the law of the State of origin. Therefore, in any case we should delete the phrase "of the State."
Secondly, in my opinion this is not only a question of discrimination among foreigners or among minorities. There is a very important law existing in many countries to the effect that certain persons do not have the freedom to contract marriage. They are considered as minors during their entire lives. They are obliged either to accept the spouse who is imposed upon them, or else, when they wish to marry, they must always ask for the consent of the chief of the tribe or the clan or the family. For the last quarter of a century, there has been a great social movement to defend the liberty of the person wishing to marry, male or female. It is possible that the place where this is inserted is not quite appropriate. We might have to re-study the problem in the Commission, but I take the liberty to state that we are embarking upon the defense of many rights which are less fundamental than the right of a human being to found a family. I do not think we would give a good impression if, after having raised the question before public opinion, we should simply delete this for technical reasons. I do not believe we can use technical difficulties as a screen. We can admit that our text is imperfect. We can request that the Commission on Human Rights will restudy the problem, but I do not think we should simply ignore the difficulty.
Finally, with regard to the phrase "legal personality", I should like to advise the Chairman that she is quite right in asking to have this clarified. As a matter of fact, the next two paragraphs are intended to make this more specific. However, this is a very important problem. Slavery has two principal aspects. The first aspect is the destruction of the physical liberty of man. This is what we dealt with a few minutes ago in saying that slavery is inconsistent with the dignity of man, and therefore prohibited.
But a very important point remains, namely, that slavery is the negation of the legal personality. For thousands of years it was said that if somebody is a slave, it means he has no right to enter into a contract, he has no right to marry freely, he has no right to inherit or leave inheritances. This is a point which we have not yet examined and I think it is appropriate, since we are studying the fundamental rights of man, to state that not only must everybody be free physically, but to state also that every human being normally possesses rights and obligations, and, therefore, has "legal personality."
If you think we could add to the phrase "legal personality" words to the effect that one may have rights and obligations or responsibilities, some kind of clarifying phrase to that effect, I think public opinion will understand what we are trying to do.
Chairman: In English, one would say "Everyone has the right to a legal personality." Can you help me translate that?
Mr. Cassin (France) (Interpretation from French): In French, we say "legal personality,"9 and then we could add the following: "In other words, to be able to be a bearer of rights, obligations, and responsibilities." This is the explanation of that phrase, and I assure you it corresponds to something that is very serious and important.
Chairman: In other words, he has certain inalienable rights and responsibilities? That is not correct, is it?
What you are aiming at is really not to take away from a man at any time certain legal protection; but the question is: How should that be said? Perhaps, it is better to leave it "legal personality" and it will mean the right thing to the lawyers and perhaps sometimes to the individuals.
Mr. Koretsky (USSR) (Interpretation from Russian): I shall start off with what Mr. Cassin has already mentioned. He gave some examples in connection with marriage. He mentioned certain tribal customs, according to which women and girls are still fully dependent not only on their parents but also on the heads of clans or tribes. Apparently this is not only true in one place; it is true in many places. But I think that what he did use as an example is an example of discrimination against women. Therefore, since we are talking about discrimination, we ought to mention this particular point here. If we are going to mention marriage, we, I am afraid, will have to mention all the other numerous fields with regard to which in many countries women are still dependent and still do not have equal rights.
We are just picking on one phase of discrimination and we are speaking about it particularly. Perhaps, we might have to embark on a listing of all those aspects of social life under which women are still factually and juridically unequal. So much for the question of women.
As regards "legal personality," it seems that this is rather over-legalized, if I may say so, in order to put it into a declaration of the rights of man. Legal personality means the ability to have rights.
According to what we say in Article 1 to the effect that everybody is free and has equal rights and dignity, perhaps this phrase "legal personality" is superfluous, not only because it repeats that same thing, but also because it introduces a rather complicated juridical concept of legal personality. It might be superfluous in view of Article 1.
I sympathize with the Chairman who wanted to have this thing clarified—this expression "legal personality." Perhaps the lawyers who are present might recognize that much midnight oil has been burned by jurists in order to explain this particular juridical phrase. I think it has outlived its utility as a general formula. It was an important point in the battle against feudalism. It was then theoretically necessary in order to give a legal foundation and in order to bring into existence this principle of equality among human beings. But since this very principle is already proclaimed in Article 1 in an extremely broad manner, its repetition here is rather superfluous. I do not think it adds anything to Article 1. However, I agree with the Chairman that it could bring about certain confusion.
Therefore, if I may, I should support the deletion of the first and second sentences of Article 15, because both principles are covered by the Article on non-discrimination. Perhaps, however, the Article on non-discrimination is in need of further development. Perhaps, it might be appropriate not only to repeat the words of the Charter; it might be appropriate to develop those words.
I have already stressed the necessity of developing that non-discrimination problem because discrimination is still extant. It is still an historical phenomenon which is important in many countries. Discrimination will have to be fought against, and a mere repetition of the words of the Charter might be insufficient. However, this expression used in Article 15, sentences one and two, are not necessary.
Chairman: It has been suggested to me that we might say that everyone has the right to a status in law and the enjoyment of fundamental civil rights.10 That would perhaps explain to the lay person better than using the words "a legal personality."
There is one other thing. In this question of marriage I really think that that might go to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, for this reason: that the United States of course favours in every way the same freedom for women and men in marriage. But we understand that this matter was considered in the Commission on the Status of Women, and we wonder whether their recommendation should not be reviewed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in order to get a fully rounded point of view on that—not saying that it shall not appear, but that until we have their review we will not put in a completed text. We will simply say, if you agree with me, that everyone has the right to a status in law and the enjoyment of fundamental civil rights and then a note saying that the question of equal rights and freedom in the contract of marriage was mentioned, but that it was decided to ask the Sub-Commission on Prevention of Discrimination and Protection of Minorities to review what had been said and recommended in the Commission on the Status of Women. Then we could have, I think, the other sentence: "Everyone shall have access to independent and impartial tribunals for the determination of his rights, liability, and obligations under the law."
Dr. Chang suggested that that should better be brought back and be included in the review of Articles 8, 9 and 10, and concerning the sentence that the right to consult with and eventually be represented by Counsel, the word "eventually" we feel strongly should be changed to some other word. If that is included, we should hope that a better translation could be found.
Is that the way this Article should be handled, according to the Committee, or shall we make some other change?
Mr. Cassin (France) (Interpretation from French): It seems to me that the suggestion of the Chairman is very good, and I fully associate myself with what she has said, with the reservation that the words "civil rights" in English should be translated as "droits civils" in French.
As regards the footnote referring the matter to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, I think that is very judicious.
If I have to disagree with anything, it is with what Dr. Chang said when he said that this could be added to Article 8, 9 and 10. I think that Articles 8, 9 and 10 refer to penal law, liberty, and security of man. This Article refers to family rights, the right to patrimony and to a profession, and all such matters which might be brought before certain tribunals. It is not the same thing as the protection of an accused person before a criminal tribunal which is contemplated under Articles 8, 9, and 10.
Mr. Santa Cruz (Chile) (Interpretation from Spanish): I am in complete agreement with what has just been said by Mr. Cassin with regard to the difference between these rights and the rights mentioned in Articles 8, 9 and 10. I want to make a further observation so that it will be recorded in case there is a need to study this point in the Commission.
Reference is made here to the individual's right of appearing before an impartial and independent court which would determine his rights. Nearly all legislations provide that tribunals should determine civil and political rights, and in general, the civic rights of the person, or the legal rights. There are, however, other rights that arise from the relations between the State and the public administration which is called "administrative law." Some legislations have set up administrative tribunals to determine the rights of individuals in this respect. In other legislations, it is the State itself that determines these rights.
Without expressing an opinion on the convenience of introducing a restriction, I would like this observation to be recorded so that the question I raised will be taken up in the Commission itself.
Chairman: It will be recorded.
Mr. Koretsky (USSR) (Interpretation from Russian): I only wanted a brief clarification. It seems that no decision has been taken yet with regard to paragraphs 1 and 2 of Article 15. What has been said about civil rights seems to be fully covered by Article 1, and if it is not sufficiently covered in Article 1, we might develop the terms of that Article.
I wonder also whether it is appropriate to leave in the phrase, "in accordance with the laws of the State" because that might mean an approval of polygamy, which still exists in certain States. I do not think that feminist organizations which are interested in the drafting of this Article, would be interested and would approve or support polygamy. Therefore, I should like to know the nature of these two sentences.
Chairman: I do not think you understood what we have suggested. The suggestion was that Article 15 should read: "Everyone has the right to a status in law and enjoyment of fundamental civil rights," and Mr. Cassin agreed that would explain "legal personality."
The second sentence we decided to leave out and to refer simply a note to the Commission saying that the question of the right to contract marriage had been discussed, but it had been decided that we should wait until we had asked the Sub-Commission on Prevention of Discrimination and Protection of Minorities to review the recommendations made in the Commission on the Status of Women, and then to report back on their own findings.
Dr. Chang had suggested taking out the first part of paragraph 3, and putting it back into Articles 8, 9 and 10, but Mr. Cassin pointed out that it dealt with a different kind of legal right, and therefore, he felt it should be kept in. In view of that, I think we shall have to leave paragraph 3 in, subject to a different translation of the word "eventually" as the United States representative suggested. The word "eventually" does not really interpret the French document properly. Then we would read Article 15 with the first sentence as has been read before; the second sentence with a note for the Commission; and the third as it now stands with the exception of a better interpretation of the word "eventually."
Dr. Chang (China): If the first sentence is to be substituted by the one you just recommended, naturally the third paragraph should go with it. That is a description of what is meant by "civil rights" and "legal status." But I think on the whole, it is still a little too technical for the common man. The common man wants equality, consideration, and he wants to know his relationship with the courts, and if it is not included, then perhaps we may have no third paragraph at all. If it is necessary to mention these rights, perhaps it should stand together with the first paragraph of Article 5. That is only natural. My suggestion at the time was that inasmuch as the first Article may appear too technical and if a clarification of the relation of the individual to the tribunals that is concerned, it may be considered as a part of the consideration of the tribunal relationship with the individual, both civil and criminal.
Chairman: If I remember rightly, I think that in our former discussion it was held extremely important to have an Article that stressed the right to what was called a "legal personality." We discussed that, and Mr. Cassin pointed out why he thought it was important. He has now accepted the other wording which I suggested simply for the benefit of the layman, not for the benefit of the lawyer. If we accept that, then I understand that we all agree that paragraph 3 should go in. That was what I had suggested to the Committee with the only exception that the word "eventually" be interpreted better.
Dr. Chang (China): Even then, the last sentence may still be a comment instead of being a part of the Article itself, because it does seem to be some sort of a detail instead of a general principle.
In regard to keeping this idea which really has been developed more in countries where legality has been emphasized and defined more clearly, with regard to keeping this Article at all, I would like to reserve my position.
Mr. Cassin (France) (Interpretation from French): Of course each representative is completely free to express his opinion, but taking advantage of the same liberty, I must state that this is one of the most important texts of the Declaration, on a national as well as international level. On the national level, it means that every citizen has the right to have access to justice. He cannot be denied the right of going before a judge if he is going to be tried on a case. For us, this seems to be rather elementary because we live in organized countries. But we have seen so many examples, not so long ago, when people were refused the right to go before judges. I do not think this was only a case of discrimination. There are States who simply do not accept the fact that everyone has the right to be defended or to go before a judge.
On an international plane, it seems to me that we have to improve the foreigners, in my opinion, and this goes for my country as well as for many others. One hundred fifty years were needed after the adoption of the Civil Code or the Napoleonic Code, in order that tribunals should recognize the foreigners living on French soil and should recognize the right of such foreigners to go before a tribunal.
At the beginning, it was said, "Oh, you are a foreigner. Well, French tribunals are made for Frenchmen and you cannot go before them."
I think this should be changed and it was changed in my country.
In the Declaration of Human Rights, we should say that a man, even if he is a foreigner, has the right to go before a tribunal if he has his suitcase stolen or if he is evicted from an apartment.
Chairman: The position of the United States is that it agrees with this position and the importance of including this Article.
I should like to get the general feeling of the Committee. As I now understand it, the representative of China felt that it might not be necessary to include this Article at all. However, in the general discussion which we have had, the feeling of the majority was that it should be included. It would now read:
"Every one has the right to a status in law and to the enjoyment of fundamental civil rights."11
Then we would have the note on the right to contract marriage;12 then, we would have:
"Every one shall have access to independent and impartial tribunals for the determination of his rights, liabilities, and obligations under the law."13
The United States would add the note that they wish to include: "He shall have the right to consult with and be represented by Counsel", changing the translation of the word "eventually".
Now, if that is as the Committee wishes to have it forwarded, that is the way we will agree to.
Chairman: Very well, the Article is adopted.
PVrbmex CHM, DLC
1. See header Document 230.
2. The members of the Human Rights Commission drafting committee included: ER (chairman), René Cassin of France, Peng-chun Chang of China, Hernán Santa Cruz of Chile, Colonel William Roy Hodgson of Australia, Vladimir Koretsky of the Soviet Union, Charles Malik of Lebanon (rapporteur), and Geoffrey Wilson of Great Britain. Koretsky (1890–1990), a prominent international lawyer, had replaced Valentin Tepliakov, a junior official, indicating that the Soviets were giving the work of the HRC greater weight (Glendon, 54, 58-64).
3. Cassin's draft drew about 75 percent of its substance from Humphrey's version. His major contribution was to reorganize the articles in a more logical way and to give the bill of rights unity and structure. He added a preamble and placed six general principles at the head of the list of rights. Although the document went through many further revisions over the following year and a half, most of the ideas in Humphrey's draft and the essential structure of Cassin's version survived in the finished Universal Declaration of Human Rights (Morsink, 8).
4. Glendon, 274-80.
5. "Le cas échéant" means "if need be." ER's fluency in French made it possible for her to discuss issues of translation such as this with Cassin (POFD).
6. The drafting committee's task was to produce a declaration of principles, not a convention, which is a legally binding document. The HRC would later work on drafting a convention (Glendon, 84).
7. Koretsky is referring to the antimiscegenation laws in the United States. See n12 Document 230.
8. Charles Malik.
9. The expression in French is "personnalité juridique."
10. This suggestion may have come from James Hendrick, ER's State Department advisor for the HRC, who sometimes handed her notes during meetings. Some of these notes survive in Hendrick's papers at the Truman Library, but the editors were not able to locate a note on this topic.
11. The wording of this right went through further revision during the drafting process. In the final version of the Universal Declaration of Human Rights (UDHR) the concept appears as Article 6: "Everyone has the right to recognition everywhere as a person before the law."
12. The right to marriage was included in the UDHR as Article 16: "(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
13. The right to a fair trial appears in the UDHR as Article 10: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." The right to representation by counsel was not included. Instead, the first clause of Article 11 states: "Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense."
On Negotiating with Russia
ER used her June 23, 1947, My Day column both to critique the Soviet Union's negotiating strategy and encourage American commitment to ongoing dialogue:
Too often, the USSR announces its position and then, though occasionally it changes the words, it never changes the position. That is not negotiation, nor cooperation. It presupposes that if you stick to your own position, you will wear the other people out and they will finally agree with you merely because they are too weary to go on with discussions. Fortunately, the Americans are not made that way. They wish to negotiate. They will willingly make concessions when they are convinced of the fairness and the wisdom of other suggestions. But they do not make concessions simply because they are being brow-beaten.
I think it is not only possible but essential that the United States and the USSR learn to get on together, but I think there must be concessions on both sides.1
Chester Bryant of Knoxville, Tennessee, wrote ER the day the column appeared, detailing his disagreements with her position:
The American people are fed up with making concessions to Russia, that's all we have been doing and where has it gotten us? It is high time we should be getting ready for war with Russia for it is certain to come if we expect to save our democracy from Communism. That is what little we have left. Russia would have all of us slaves as well as all the world for that's her aim.
All your statements concerning our getting along with Russia are doing much harm and no good. That also goes for your remarks about the colored people. You would do your country a great service if you would keep your pen silent.2
ER sent Bryant the following brief reply.