Notre Dame Law Review

Volume 53 | Issue 1 Article 4

10-1-1977

Helsinki Agreement and Human Rights

A. H. Robertson

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A. H. Robertson, Helsinki Agreement and Human Rights, 53 Notre Dame L. Rev. 34 (1977).
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 THE HELSINKI AGREEMENT AND HUMAN RIGHTS*

A. H. Robertson**

This essay will consider the provisions concerning human rights in the
Helsinki Agreement of 1975 and the developments which have arisen from this
agreement. In conclusion, the author will propose a few ideas about future
action for the international protection of human rights, and whether these
actions should result from the Helsinki provisions or through the operation of
the United Nations system.

Part I. The Final Act of the Helsinki Conference

The "Conference on Security and Cooperation in Europe" was formally

opened at Helsinki on July 3, 1973, continued at Geneva from September 18,
1973 to July 21, 1975, and was concluded at Helsinki on August 1, 1975. The
thirty-five participants included all the eastern and western European states,
except Albania, regardless of their size, the Soviet Union, the United States,
Canada, the Papacy, and the three "mini-states" of Liechtenstein, Monaco, and
San Marino. All participated on a basis of equality.1
The final Helsinki session was attended by the heads of state or of government
of nearly all the participating States, including President Valdry Giscard
d'Estaing, Chancellor Helmud Schmidt, Premier Leonid Brezhnev, Prime Min-
ister Harold Wilson, and President Gerald Ford. The final agreement, which
was signed on August 1, 1975, included four sections relating to: questions in-
volving the security of Europe; cooperation in the fields of economics, science
and technology, and the environment; cooperation in humanitarian and other
fields; and the "follow-up" to the conference.'
One should note at the outset that the final act of the Conference is not a
treaty, but a declaration of intentions. The Helsinki final act does not use the
standard formulation for a treaty. Rather, it states: "The High Representatives
of the participating States have solemnly adopted the following." It then con-
tinues: "The participating States will respect each other's sovereign equal-
ity . . ."; "The Participating States regard as inviolable all one another's fron-
tiers. . ."; "The participating States will respect the territorial integrity of each
of the participating States" and so on.
At first sight, it may seem that there is little practical difference between an
undertaking by states to do certain things and a statement that they will do
certain things. One might think that the difference is no more than a lawyer's
* Paper prepared for delivery for the Civil Rights Center at University of Notre Dame
Law School, April 29, 1977.
** Professeur AssociW, University of Paris I, formerly Director of Human Rights, Council
of Europe, Strasbourg.
1 In addition, statements were made to the Conference by representatives of Algeria,
Egypt, Israel, Morocco, Syria, and Tunisia. One section of the final act relates to "Security
and Cooperation in the Mediterranean."
2 The full text of the final act may be found in various official publications. Extensive
extracts are given in KEESING, CONTEm"osuY ARcmvas, 27, 301-8 (1975); [1975] Y.B. ON
HUMAN RIGHTs 23 (United Nations) at 211 nn.
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 35

quibble, but to do so would be a mistake. There are at least two important dif-
ferences between a legal undertaking and a declaration of intention. First, a
treaty is not binding in most countries unless it is ratified by a legislature; how-
ever, because the Helsinki final act is not a treaty, it does not require ratification
and consequently has not been submitted to the various national parliaments for
this purpose. Secondly, while non-observance of a treaty constitutes a breach of
international law and can, in many cases, lead to proceedings before the Interna-
tional Court of Justice, no such consequences can result from the non-observance
of a declaration of intention.
The fact that it is not a treaty does not mean that the Helsinki final act is
unimportant. But a failure to understand that the Helsinki final act is something
less than a treaty and does not establish legal obligations would lead to confusion
-perhaps even to acrimony. Most people would agree that the final act sets out
moral, and no doubt political, obligations of states, but these obligations are less
than binding in international law. As a result, it is inaccurate, from a legal point
of view, to speak of the "Helsinki Agreement." But since this expression has
come into common use and is more manageable than "Final Act of the Con-
ference on Security and Cooperation in Europe," there is no harm in adopting it
so long as it is understood that the word "Agreement" is used in its popular, not
legal, sense.
The second point to be noted is that the final act is concerned principally
with international security and relations between states. For various reasons, it
was impossible to conclude a peace treaty after the end of World War II; during
the period of the "Cold War," it was evident that formulation of a mutually
satisfactory definition of relations between East and West remained an impos-
sibility. But after the agreement between the two Germanies and the admission
of both to the United Nations after some years of "detente," some new arrange-
ments for "peaceful coexistence" between East and West finally seemed possible.
For years, the Soviet Union had been seeking the recognition by the other Powers
of its western frontiers as established after the end of the war, and Mr. Brezhnev
had made this recognition a central focus of his foreign policy. After much
hesitation, the Western Powers agreed to a Conference on Security and Coopera-
tion in Europe, even though many people in the West feared that, while the
Soviet Union had much to gain from the recognition of its frontiers, there was
little that the Western Powers were likely to receive in return from such a con-
ference. They had no territorial claims to make (except for the Germans, who
knew in advance that the reunification of Germany was not to be expected) and
they recognized that no fundamental political changes by the eastern nations
would result. Nonetheless, the western nations tried to obtain certain modest
concessions in regard to freedom of movement and of information between East
and West. Such concessions, it was thought, might be the beginning of a gradual
liberalization of authoritarian regimes.
The third preliminary point concerns the human rights provisions of the
final act. Since the final act is concerned with relations between and interests
of states, the provisions concerning human rights are more concerned with
reasons of state than they are with the protection of the rights of the individual
 NOTRE DAME LAWYER [October 1977]

per se. The final act does not follow the lead of the Universal Declaration or of
the United Nations Covenants in providing that "everyone has the right to" a
number of fundamental rights and freedoms; rather, it provides that "the par-
ticipating States will respect human rights and fundamental freedoms. . ....
Thus, in accordance with the whole philosophy of the final act, the action of
states rather than the situation or behavior of individuals is the target of the
human rights provisions.
The first three sections of the actual text of the final act are commonly
known as three "baskets." It is commonly believed that the Third Basket contains
the provisions which are most concerned with human rights, but this assumption
is a mistake. More important to a consideration of human rights is Basket I
which begins with a "Declaration on Principles guiding Relations between
Participating States." This declaration sets out ten fundamental principles. They
are:

1. Sovereign equality and respect for the rights inherent in sovereignty.

2. The refraining from the threat or use of force.
3. Inviolability of frontiers.
4. Territorial integrity of states.
5. Peaceful settlement of disputes.
6. Nonintervention in internal affairs.
7. Respect for human rights and fundamental freedoms, including freedom
of thought, conscience, and religion or belief.
8. Equal rights and self-determination of peoples.
9. Cooperation among states.
10. Fulfillment in good faith of obligations under international law.

Each of these principles is explained in some detail in the final act. It is

perhaps significant that the principle concerning human rights and fundamental
freedoms has an eight-paragraph explanatory text. This text (see Appendix)
makes four principal points. First, "the participating States will respect human
rights and fundamental freedoms"; freedom of thought, conscience, and religion
or belief are mentioned specifically. Secondly, the participating states promise to
"promote and encourage the effective exercise of civil, political, economic,
social, cultural and other rights and freedoms." It is important to note that while
this affirmative statement relates to human rights and fundamental freedoms in
general, it does not specify expressly those rights and freedoms, except for freedom
of thought, conscience, religion or belief, to which it applies. It is significant that
the very widely drawn reference to "civil, political, economic, social, cultural
and other rights and freedoms" is preceded by the words "promote and en-
courage." Thus, the participating states agree to a considerably weaker statement
than would be a promise to "respect" these rights and freedoms. It recalls Article
1(3) and Article 55 of the Charter of the United Nations, which by speaking of
"promoting and encouraging respect" for human rights and fundamental free-
doms contain an expression of intention for the future without an immediate
obligation. The third principal point to note in the text is that it contains a
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 37

statement that the participating states will respect the rights of national minor-
ities; the text thus recalls Article 27 of the Covenant on Civil and Political Rights.
The fourth point is that there are two references in the text to the human rights
work of the United Nations. The sixth paragraph which states that the par-
ticipating States will endeavor "jointly and separately, including in cooperation
with the United Nations, to promote universal and effective respect" for these
rights and freedoms, substantially repeats Article 56 of the Charter. Finally, in
the eighth paragraph, the participating States assert that they "will act in ac-
cordance with the purposes and principles of the Charter of the United Nations
and with the Universal Declaration of Human Rights." This paragraph refers
specifically to the states' "obligations as set forth in the international declarations
and agreements in this field, including inter alia the International Covenants on
Human Rights, by which they may be bound."
In summary, then, it is evident that the "Declaration on Principles Guiding
Relations between Participating States" includes respect for human rights among
its basic principles, placing human rights alongside such other principles as the
inviolability of frontiers, the peaceful settlement of disputes, and the refraining
from the use or threat of force. The seventh principle in the final act is wide in
scope because the second paragraph refers to the effective exercise of all cate-
gories of rights and freedoms, but it is also limited in effect because (like the
Charter itself) it contains expressions of intention rather than affirmative state-
ments of a determination to "respect" human rights. In addition, some of its
provisions would appear to be tautologous, as, for example, the reaffirming of
existing obligations; however, this is not a criticism, since the constant reaffirma-
tion of the obligation to respect human rights may help to impress that obliga-
tion more indelibly in the conscience of both governments and the general public.
It is now time to examine the "third basket." It is not necessary for the
purpose of this essay to consider "Basket Two" which sets out a series of
measures relating to commercial exchanges, industrial cooperation, science and
technology, and the environment. The contents of Basket Three can be sum-
marized briefly. Entitled "Cooperation in Humanitarian and Other Fields,"
Basket Three contains four sections. The first relates to "human contacts" and
deals inter alia with reunification of families, marriages between citizens of dif-
ferent states, travel, tourism, meetings of young people, and sports activities. The
second section-which would be of great importance for the future if effectively
implemented-concerns the free flow of information. The participating states
"make it their aim to facilitate the freer and wider dissemination of information
of all kinds" and set out a number of steps to be taken for this purpose through
the use of oral, printed, film, and broadcast information. The steps to be taken
include measures "to facilitate the improvement of the dissemination on their
territory of newspapers and printed publications... from the other participating
States" and measures "to improve the conditions under which journalists from
one . . . State exercise their profession in another. . . ." Finally, Basket Three
contains two short sections about cooperation and exchanges in the fields of
culture and education.
 NOTRE DAME LAWYER [October 1977]

Part II. Post-Helsinki Developments

The signature of the Final Act of the Conference on Security and Cooper-
ation in Europe was much more widely acclaimed and its contents more widely
publicized in the East than in the West. This fact is not surprising. The Soviet
Union had a greater interest in the successful conclusion of the Conference
because the Final Act constituted an official acceptance by the West of the ter-
ritorial acquisitions of the U.S.S.R. during World War II. What had been
agreed by three Powers at Yalta-and a good deal more than that-had now
been accepted as permanent by the whole of Europe, plus the United States and
Canada. This was a real achievement for Soviet diplomacy.
One might have thought that this agreement would mark the beginning of
a new era of detente and cooperation in Europe. Such hopes, however, have so
far been disappointed. In fact, little has changed, and the old atmosphere of
mutual suspicion seems to continue almost unabated. What has changed, how-
ever, is public opinion, at least in certain intellectual circles in Eastern Europe.
The publicity given to the Final Act led many people to believe that its pro-
visions on human rights would be implemented and that an era of liberalization
was about to begin. The well-informed knew that all the East European States
except Poland also had ratified the United Nations Covenants and thus ac-
cepted binding obligations in international law to respect human rights. With
these two significant developments, it was hardly surprising that politically con-
scious individuals began to expect their governments to allow a freer flow of in-
formation and greater liberty of expression--even if they were not so foolhardy
as to expect the right to form a political opposition.
The most striking example of this new spirit was in Czechoslovakia; there
nearly 500 intellectuals and others subscribed early in 1977 to a human rights
manifesto which they called "Charter 77." The manifesto takes as its point of
departure the ratification by Czechoslovakia and the publication in the "Czecho-
slovak Register of Laws" on October 13, 1976, of the two United Nations
Covenants on Human Rights and the reaffirmation of the Covenants in the Final
Act of the Helsinki Conference. "Charter 77" welcomes accession to those agree-
ments but also continues: "Their publication, however, serves as a powerful
reminder of the extent to which basic human rights in our country exist, re-
grettably, on paper alone." A series of examples are then given of various rights
which have been proclaimed and protected by the Covenants but, in fact, are
systematically violated in Czechoslovakia; these rights include: freedom of ex-
pression, freedom of information, freedom of religion, freedom of association, the
right to form trade unions, the right to privacy, and the right to emigrate
freely.3
"Charter 77" is not the basis of an organization and expressly states that it
does not form the basis for a political opposition; rather, its subscribers seek to
conduct a constructive dialogue with the political and state authorities, just as
many non-governmental organizations do in democratic countries. The signa-
tories authorized three of their number to act as spokesmen; the first of these was

3 For the full text of "Charter 77," see The Times, Feb. 11, 1977.
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 39

Professor Jan Patocka.

The repressive measures taken against the signatories of "Charter 77" have
been widely reported in the press.4 Alexander Dubcek, head of the government
responsible for the "Prague spring" in 1968, was prevented from signing the
Charter because of police supervision but indicated his support through an inter-
mediary.5 In March of 1977, Max van der Stoel, the Dutch Foreign Minister
and well-known champion of human rights was in Prague on an official visit.'
He honored Professor Patocka's request for a meeting. The Czech Government
responded by cancelling van der Stoel's appointment with the President of the
Republic.' Professor Patocka died shortly after, having been subjected to pro-
longed interrogation; two other spokesmen for the group were arrested. Eleven
signatories of the Charter, all ousted members of the Central Committee of the
Czechoslovak Communist Party, have appealed to other European Communist
Parties to protest against their repression, insisting that the government's actions
gravely discredit socialism not only in Czechoslovakia but in the whole of
Europe.'
"Charter 77" has, in fact, evoked considerable support in other Eastern
European countries. In Yugoslavia, Milovan Djilas, a former leader of the
Communist party, has appealed to West European Communist Parties to support
the Charter and the movement for human rights not only only in Czechoslovakia
but also in his own country, where he says that, on a proportional basis, there are
as many political prisoners as in the Soviet Union.' Repercussions to the Charter
also have been observed in East Germany, in Poland,1" and in Roumania, where
the writer Paul Goma, who led the movement, has been arrested.
The new British Foreign Secretary, David Owen, has publicly expressed his
government's intention to make action for the defense of human rights a basic
issue of foreign policy, and his Minister of State has informed the Russians of the
importance the British attach to application of the Helsinki Agreement." A com-
mittee of the Inter-Parliamentary Union, which includes Russian members, will
hold a conference early in 1978 to review compliance with the provisions of the
Final Act; the president of the Inter-Parliamentary Union has declared that 1977
and 1978 will be crucial to the success of the Helsinki Agreement. 2
But the most important reaction to the Helsinki Agreement is no doubt that
of the Soviet Union itself. A committee, under the chairmanship of Youri Orlov,
has been established to supervise the application of the Helsinki Agreement; the
detention of Alexander Guinzbourg has led to the signature of a manifesto by
248 supporters; Andrei Sakharov, who formed the Soviet Committee on Human
Rights nearly ten years ago, has continued his struggle in unprecedented fashion,

4 For example Le Monde, Jan. 29, 1977; Herald-Tribune, Mar. 18, 1977.
5 See note 3 supra.
6 Van der Stoel was Rapporteurof the Assembly of the Council of Europe for the question
of human rights in Greece in 1968 and 1969. Later he was President of the Parliamentary Con-
ference on Human Rights held by the Council of Europe in Vienna in 1971.
7 The Times, Mar. 14, 1977.
8 Herald-Tribune, Mar. 18, 1977.
9 The Times, Feb. 10, 1977.
10 Le Figaro, Feb. 9, 1977.
11 The Times, Feb. 9, 1977.
12 Le Figaro, Feb. 18, 1977.
 NOTRE DAME LAWYER [October 1977]

including an American television interview, a personal letter to President Carter,

and a letter to all the heads of State or of government who signed the Helsinki
Agreement. To Sakharov's letter, President Carter replied, "You may be assured
that the American people and our government will maintain their firm engage-
ment to promote respect for human rights not only in our country but also
abroad."' 3 Vladimir Boukovski, who was exiled from the Soviet Union in
December 1976 after serving twelve years in prison, in an exchange for the
Chilean Communist leader Luis Corvalan, was received by President Carter in
February 1977 and testified to a Congressional Committee that none of the
human rights provisions of the Helsinki Agreement are being respected in the
U.S.S.R. In February 1977, Andrei Amalrik, a dissident historian exiled in 1976,
solicited an interview with President Giscard d'Estaing of France which was
refused, but Amalrik spoke to the press in Paris more or less as a representative
of the Committee on the application of the Helsinki Agreement.' 4
This brief-and necessarily incomplete--summary of recent and well-known
developments paints the broad outlines of a picture of the contemporary scene
and shows that the Helsinki Agreement-or, more specifically, the human rights
provisions of the Helsinki Agreement-have had an effect. In Eastern Europe
the impact has surpassed the expectations of some of its authors; in the Com-
munist world, reaction to the Agreement highlights the fact that human rights
principles remain largely a dead letter in these nations. What is unique is that
the Helsinki texts have beeen widely publicized in eastern European countries
and that this publicity has given new courage to those who are prepared to
fight for their rights.
Still another new factor is the reaction to the Agreement in the West,
particularly that of the President of the United States. The Soviet Union has
retorted that this Western reaction constitutes an improper interference in its
internal affairs, a reaction which in itself is contrary to the Helsinki Agreement.
The withdrawal of an American proposal to the U.N. Commission on Human
Rights requesting that the Soviet Government provide information "about recent
reports of arrest and detention in the U.S.S.R. of persons who have been active
in the cause of promoting human rights"' 5 in the face of a counter motion by
Bulgaria to cut off discussion of the American proposal illustrates the extent of
Communist hostility to American championing of human rights.
However, the Russian point of view cannot and should not be dismissed out
of hand. The sixth principle in the "Declaration on Principles Guiding Rela-
tions (see Appendix) between Participating States" mandates non-intervention
in internal affairs. This principle states in part:
The participating States will refrain from any intervention, direct or indirect,
individual or collective, in the internal or external affairs falling within the
domestic jurisdiction of another participating State, regardless of their
mutual relations.

Therefore, it is necessary to ask whether acts such as President Carter's

13 Daily Telegraph, Mar. 4, 1977; The Times, Feb. 24, 1977.
14 Le Figaro, Feb. 22, 1977.
15 U.N. Doc. E/CN. 4/1352 (1977).
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 41

letter to Andrei Sakharov, the testimony of Vladimir Boukovski before a Congres-

sional committee, or the American proposal to investigate Soviet human rights
violation made to the U.N. Commission on Human Rights constitute an "in-
tervention, direct or indirect . . . in the internal affairs falling within the
domestic jurisdiction" of the Soviet Union. A similar question is also raised by
the repeated attempts of western nations to introduce a procedure which would
permit the U.N. Commission to consider complaints of violation of human rights
and the equally repeated objection of the U.S.S.R. that such action would
violate Article 2, Paragraph 7 of the Charter, which prohibits the United Nations
from intervening "in matters which are essentially within the domestic jurisdic-
tion of any State.. .. ""
The problem of the meaning and effect of this provision of the United
Nations Charter is as old as the United Nations itself. Since the same problem
arises in relation to the Helsinki Agreement, it seems appropriate to summarize
the issues involved at this point.17 Of course, different governments have taken
different positions at different times, depending on their own political context;
one of the more remarkable feats of U.N. diplomacy is the facility with which
some delegates argue that it is outside the competence of the U.N. to discuss
human rights situations in their own territory or that of their allies but quite
proper to discuss alleged violations by their political opponents. For example in
1946, Vyshinsky of the Soviet Union noted that this provision did not prevent
the U.N. from discussing the situation of Indians in South Africa; in 1952, Santa
Cruz of Chile insisted that "abuse of Article 2(7) of the Charter might paralyze
the action of the United Nations," while in 1952 he insisted that "the interna-
tional law created by conventions and agreements among countries removes a
number of questions from the exclusive competence of States . . . since the
adoption of the Charter, all fundamental human rights have formed part of
international law since they are included in that multilateral treaty, the Charter."
Among the texts of major importance to a discussion of Article 2, Paragraph
7 is the 1953 Report of the U.N. Commission on the Racial Situation in South
Africa which discusses at length the meaning of Article 2 (7) of the Charter and
cites the views of such eminent jurists as Lauterpacht, Cassin, and Kelsen. This
report contains the following statement:

[T]he United Nations is unquestionably justified in deciding that a matter

is outside the essentially domestic jurisdiction of a State when it involves
systematic violation of the Charter's principles concerning human rights, and
more especially that of non-discrimination, above all when such actions
affect millions of human beings, and have provoked grave international
alarm, and when the State concerned clearly displays an intention to ag-
gravate the position.

When this report was discussed in the General Assembly in 1953, South

16 U.N. Doc. E/CN. 4/1354 (1977).

17 A most useful collection of the relevant texts is International Protection of Human
Rights 556-856 (L. Sohn + T. Buergenthal, eds., 1973). A brief summary of some of the issues
is given in a review of that book by the present author in 8 Human Rights J. 289, 293-96
(1975).
 NOTRE DAME LAWYER [October 1977]

Africa introduced a draft Resolution rejecting the report's conclusions and main-
taining that the matters dealt with therein were "matters essentially within the
domestic jurisdiction of a Member State" and therefore outside the competence
of the United Nations; this draft was rejected by a vote of forty-two to seven
with seven abstentions. The same situation has, of course, arisen on many sub-
sequent occasions, as illustrated by the Second Report on the Racial Situation in
South Africa, by discussions in the Security Council in 1960 on the request of
twenty-nine states that the Council consider the Sharpeville massacre, by the
discussions in the Security Council in 1963-1964 on the report of the Special
Committee on the Policies of Apartheid, and by discussions in 1970 on the ques-
tion of the arms embargo against South Africa. Henry Cabot Lodge stated the
American position in regard to such discussions in 1960:

We all recognize that every nation has a right to regulate its own internal
affairs. This is a right acknowledged by Article 2, paragraph 7, of the
Charter. At the same time, we must recognize the right-and the obliga-
tion-of the United Nations to be concerned with national policies in so far
as they affect the world community. This is particularly so in cases where
international obligations embodied in the Charter are concerned.

Until 1945, international law considered that the manner in which a State
treated its own nationals was, except in very unusual circumstances," a question
within its own jurisdiction and competence, with which other states had no right
to intervene. To illustrate this attitude, the late Ren6 Cassin often cited Goeb-
bels' address to the Council of the League of Nations in which the latter asserted
that the way in which the German government treated certain categories of
German citizens was the concern of the German government alone. However
reprehensible Goebbels' attitude may have been morally, it could be justified
legally at the time.
Since the Nazi era, however, the legal position has changed. Matters in
which states have accepted obligations in international law have ceased to be
questions within the sole domestic jurisdiction of the individual states. The un-
fettered rule of national sovereignty no longer applies. States which have ac-
cepted such obligations have a legitimate interest in seeing that the common
undertakings are respected. The mere fact that these undertakings may relate
to the maintenance by a state of the human rights of its own citizens does not
justify a derogation from the fundamental rule of international law: "Pacta sunt
servanda." This reasoning provides the legal basis for President Carter's state-
ment to the United Nations on March 17, 1977, in which he said:
The search for peace and justice means also respect for human dignity. All
the signatories of the U.N. Charter have pledged themselves to observe and
respect basic human rights. Thus, no member of the United Nations can
claim that mistreatment of its citizens is solely its own business. Equally, no
member can avoid its responsibilities to react and to speak when torture or
unwarranted deprivation of freedom occurs in any part of the world.
18 SOHN & BUERGENTHAL, supra note 17, at 137-211. The best-known examples were in-
tervention by the European powers in favor of the Christian minorities in the Ottoman Empire
during the nineteenth century.
[Vol. 53:34 THE HELSINKI AGREEMENT AND HUMAN RIGHTS 43

The same basic argument applies in relation to the final act of the Helsinki Con-
ference. Although this agreement is not a treaty enshrining obligations in inter-
national law, it does contain firm expressions of intention to which particular
solemnity was attached in an essentially political context; consequently, each
participating state can expect that every other participant will honor its word.
The legal framework accepted by all members of the United Nations as the
appropriate means of ensuring respect for human rights is that of the two United
Nations Covenants of 1966. Entry into force in 1976 of these Covenants repre-
sented the fruition of thirty years' endeavor. The Covenants contain legal obliga-
tions which are more detailed, more specific, and more stringent than the
Charter, the Universal Declaration, or the Helsinki Agreement. Consequently,
any State which feels it necessary to reproach another for non-observance of
human rights is in a much stronger position-both legally and morally-if it has
itself accepted the international standards and commitments contained in the two
Covenants.

Part III. Some Reflections on the Future

The "Fourth Basket" of the Helsinki final act concerns the follow-up to the
Conference. It begins with a declaration by the participating states of their
resolve "to pay due regard to and implement the provisions of the Final Act"
unilaterally, bilaterally, and multilaterally. They then declare their intention
of continuing the multilateral process begun at the Conference through further
exchanges of views on the implementation of the Final Act, of improving security,
and of developing cooperation and detente in Europe. The first follow-up
meeting was scheduled to take place in Belgrade in September 1977.
The Western governments have held preparatory discussions for the Bel-
grade Conference in the North Atlantic Council, in the Committee of Ministers
of the Council of Europe, and in the European Council of the "Nine"; no doubt
the Eastern countries also have organized similar discussions among themselves.
During the summer of 1977, there were press reports that the U.S.S.R. was pre-
paring an indictment against alleged violations of human rights in Western
countries, particularly by the United Kingdom in Northern Ireland. If these
reports prove correct, the Western countries concerned should not raise pre-
liminary objections about interference with their internal affairs, but, rather, they
should admit that respect for human rights is a matter of common concern which
should be freely and frankly discussed. In fact, regarding Northern Ireland, the
United Kingdom has nothing to fear. In the course of a civil war in which
hundreds of innocent civilians have been killed, there have indeed been violations
of human rights in the course of the interrogation of prisoners. However, the
British government has accepted the procedures of international control instituted
by the European Convention on Human Rights, and by the time of the Belgrade
conference, the case was before the European Court of Human Rights. The At-
torney General, on behalf of his government, has publicly expressed regret at the
violations which have occurred, has promised that they will not be repeated,
and has stated that there is an effective remedy before the courts for those who
 NOTRE DAME LAWYER [October 1977]

have suffered. Significant sums in damages already have been awarded to some
Df those who were victims of human rights violations.
The situation of the British in Northern Ireland illustrates how violations of
human rights should be handled-by an impartial investigation followed, if
necessary, by remedial action. It is, after all, more honorable for a government to
admit its mistakes and seek to remedy them than to deny their existence. How
refreshing it was to learn that the American representative on the U.N. Com-
mission on Human Rights expressed his regret at the action of the C.I.A. against
Salvador Allende! How splendid it would be if a Soviet delegate would express
his regret for Soviet action in Prague in 1968!
Of the thirty-five participants in the Helsinki Conference, seventeen have
ratified the U.N. Covenants on Human Rights. Hopefully, one result of the
follow-up conference in Belgrade will be a recommendation-or, even better, an
undertaking-that the other participants should take action to ratify the
Covenants and thus establish reciprocity of obligations about respect for human
rights. Ideally, a separate "human rights committee" of the C.S.C.E. States
would be established to supervise the application of the human rights provisions
of the Helsinki Agreement. Even if it had no greater powers than the U.N.
Human Rights Committee established under the Covenants, such a committee
would be an important step in the right direction. States which have ratified the
Covenants should, in principle, have no difficulty in accepting the organization
of such a committee though it would be unrealistic to expect such a development
in the near future, the idea might be retained for the post-Belgrade negotiations.
Finally, if human rights are to be protected, the human rights machinery of
the United Nations must be strengthened. In his March 17, 1977, speech to the
United Nations, President Carter said: "We have allowed its [the U.N.'s] human
rights machinery to be ignored and sometimes politicized. There is much that
can be done to strengthen it." He then made three specific proposals: that the
Commission on Human Rights should meet more often and that all States should
welcome its investigations, work with its officials, and act on its reports; that the
Human Rights Division should move back from Geneva to New York; and that
the proposal to appoint a U.N. High Commissioner for Human Rights, made
by Costa Rica twelve years ago, should be revived.
Even while recognizing the difficulties in implementing these proposals, one
can only support them. One might entertain some doubts about the proposal
relating to the location of the Human Rights Division. After nearly thirty years
in New York, it was moved to Geneva in 1974 and the advantage of moving it
back again now may be questioned. The most important thing, however, is to
strengthen the standing and authority of the Commission on Human Rights. If
moving the Human Rights Division will work toward that end, such a move
should be considered.
Several suggestions to this effect have been made in recent years. The
Assembly for Human Rights held in Montreal in March 1968, an unofficial con-
ference of experts during International Human Rights Year, determined that the
Commission has "a status which is not commensurate with the important re-
sponsibilities entrusted to it" and proposed that the Commission be given the
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 45

same standing as the Economic and Social Council. 9 This suggestion has been
repeated on several occasions, notably by representatives to the Commission T.
van Boven2 ° and John Carey. 2 ' The author of this essay also has called for
strengthening the Commission.2 2 Professor Louis Sohn has even suggested the
establishment of new machinery, including an Organization for the Promotion
of Human Rights (UNOPHR) as a subordinate body of the U.N. with a
Human Rights council as its main organ.2" If this solution is adopted, the new
body might be known simply as the U.N. Agency for Human Rights (UNAHR).
There are indeed several reasons why the status of the Commission on
Human Rights should be reviewed. The first is that such a review would under-
score the increased concern with human rights which the United Nations has
shown over the years and which many governments now wish to emphasize.
Since the third aim of Article 1 of the United Nations Charter is subdivided into
the two objectives of "solving international problems of an economic, social,
cultural or humanitarian character" and "promoting and encouraging respect
for human rights," and since there is a Council responsible for the first objective,
it seems only logical to have another Council responsible for the second. Secondly,
important new functions have been conferred on the Commission as a result of
the adoption in 1970 by ECOSOC of Resolution 1503 (XLVIII) on the "Pro-
cedure for Dealing with Communications Relating to Violations of Human
Rights and Fundamental Freedoms." These powers are important even if the
results of the Commission's efforts have so far been disappointing. Thirdly, the
entry into force of the Covenants will require the exercise by a U.N. organ of
new functions which the Economic and Social Council does not appear par-
ticularly well-qualified to discharge. There is therefore much to be said for re-
inforcing the position of the Commission on Human Rights and promoting it to
the status of a Council. And if one insists that with the three existing Councils
established under Article 7 of the Charter the machinery of the United Nations
is already sufficient, the -reply might be that with the passage of time, the re-
sponsibilities of the Trusteeship Council have considerably diminished because
most of the territories whose interests the Trusteeship Council was designed to
protect have become independent members of the Organization. A good case
can therefore be made for transferring the remaining functions of the Trusteeship
Council to a new Council on Human Rights. This case can be strengthened ad-
ditionally since the Trusteeship Council's duties in relation to the trust territories
which remain are largely concerned with protecting the human rights of their
areas' inhabitants. Of course, creating a Council on Human Rights would not be
easy, because it would entail amending the Charter. But if the result would be
to strengthen the effectiveness of the United Nations as an instrument for the
protection of human rights, it would be worthwhile to make the attempt. As an

19 Montreal Statement of the Assembly for Human Rights, presented to the U.N. Confer-
ence on Human Rights in Teheran, 1968.
20 T. Van Boven, The U.N. Commission on Human Rights and Violations of Human
Rights, Nederlands Tidschrift, XV (1968). Van Boven is presently director of Human Rights
in the United Nations.
21 J. CAREY, U.N. PROTECTION OF CIVIL AND POLITICAL RIGHTS 175 (1970).
22 Human Rights in the World, 46-49 '(1972); an extract from which is used in the text.
23 Sohn, U.N. Machinery for Implementing Human Rights, 62 A.J.I.L. 909 (1968).
 NOTRE DAME LAWYER [October 1977]

alternative, if it is considered too difficult to amend the Charter, then a U.N.

Agency for Human Rights could be created by resolution of the General
Assembly.
A Council or Agency on Human Rights entrusted with wide powers and
responsibilities also could take over the tasks conferred on the Economic and
Social Council by the two Covenants; it would thus constitute an organ capable
of discharging one of the principal functions of the United Nations with great
authority and with all the necessary means of enforcement at its disposal.
It is interesting to note that these proposals have recently been given new
force through the support of several governments and non-governmental organ-
izations. In accordance with Resolution 3221 (XXIX) adopted by the General
Assembly in 1974, the Secretary-General presented a report to that body in 1975
on "Ways and Means in the Framework of the United Nations System for Im-
proving the Effective Enjoyment of Human Rights and Fundamental Free-
doms" ;24 this report was based on information and opinions submitted by gov-
ernments, the Specialized Agencies, and regional and non-governmental organi-
zations. In his report, the Secretary General stated that several governments-
particularly Italy, the Netherlands and the Philippines-had suggested that the
status of the Human Rights Commission be raised to that of a "Human Rights
Council" which would report directly to the General Assembly.2" Moreover, the
Group of Experts on the Structure of the United Nations System has made
certain similar suggestions, adding that a new Council on Human Rights should
replace the Trusteeship Council.2" The proposal has also been supported by the
Christian Democratic World Union and the International Commission of
Jurists."
Having considered this report during its thirtieth session in 1975, the Gen-
eral Assembly asked governments and organizations which had not yet sent in
their views to do so without delay and decided to return to the matter at its
thirty-second session in 1977 on the basis of an updated report by the Secretary-
General.2" As a contribution to this study, a sub-committee of the NGO Com-
mittee on Human Rights in New York has made its own examination of the
problem and has considered a paper which favors either the "upgrading" of the
Human Rights Commission to the status of a Council by means of the amend-
ment of the Charter or the alternative of creating a U.N. Agency for Human
Rights by resolution of the General Assembly.2 9 Other useful suggestions for
improving coordination in the human rights work of the United Nations have
been made by Austria and Denmark." ° Canada has proposed the establishment
of two new sub-commissions of the Commission on Human Rights with five
members in each sub-commission and with groups having competence for the

24 U.N. Doc. A/10.235 (1975).

25 Id. at 116.
26 U.N. Doc. E/AC.62/9, at 1 62.
27 U.N. Doc. A/10.235, at 122 (1975).
28 G.A. Res. 3451 (XXX) (1975).
29 Unpublished paper of Sept. 28, 1976, by Daniel Lack, legal advisor of the World Jewish
Congress, Geneva, to whom I am indebted for the information given in the text.
30 U.N. Doc. A/10.235, at 117 (1975).
[Vol. 53:34] THE HELSINKI AGREEMENT AND HUMAN RIGHTS 47

promotion of human rights and the protection of human rights, respectively."'

It is evident that new ideas are in the air" and that significant discussions
may be expected both at the Belgrade Conference on Security and Cooperation
in Europe and at upcoming sessions of the General Assembly in New York.
President Carter's recent initiative is very timely. Our objective must be to
strengthen the international machinery for the protection of human rights,
whether in a pan-European or a worldwide framework, in order to ensure that
"all persons... shall be treated with humanity and with respect for the inherent
dignity of the human person." The last word may be left to the late Wilfred
Jenks, Director General of the International Labor Office and an ardent long-
time champion of human rights: "In the last analysis there is no answer to
Abraham Lincoln; it is no more possible internationally than nationally for a
society to endure permanently half slave and half free." 3

APPENDIX

Extract from the Final Act

of the Conference on Security and Co-operationin Europe

"Declaration on Principles guiding Relations

between Participating States"

VI. Non-intervention in internal affairs

The participating States will refrain from any intervention, direct or in-
direct, individual or collective, in the internal or external affairs falling within the
domestic jurisdiction of another participating State, regardless of their mutual
relations.
They will accordingly refrain from any form of armed intervention or threat
of such intervention against another participating State.
They will likewise in all circumstances refrain from any other act of military,
or of political, econonmic or other coercion designed to subordinate to their own
interest the exercise by another participating State of the rights inherent in its
sovereignty and thus to secure advantages of any kind.
Accordingly, they will, inter alia, refrain from direct or indirect assistance
to terrorist activities, or to subversive or other activities directed towards the
violent overthrow of the regime of another participating State.

31 U.N. Doc. E/CN.4/L. 1324 (1976).

32 Another new project concerns new international measures for the suppression of torture.
Largely as the result of initiatives by Amnesty International, the General Assembly adopted
two texts on this subject in 1975: G.A. Res. 3452 (XXX) and G.A. Res. 3453 (XXX). The
Commission on Human Rights in March 1977 worked on the question of measures of imple-
mentation.
33 C. JENKS, HUMAN RIGHTS AND INTERNATIONAL LABOUR STANDARDS 46 (1960).
 NOTRE DAME LAWYER [October 1977]

VII. Respect for human rights and fundamental freedoms, including the freedom
of thought, conscience, religion or belief

The participating States will respect human rights and fundamental

freedoms, including the freedom of thought, conscience, religion or belief, for all
without distinction as to race, sex, language or religion.
They will promote and encourage the effective exercise of civil, political,
economic, social, cultural and other rights and freedoms all of which derive from
the inherent dignity of the human person and are essential for his free and full
development.
Within this framework the participating States will recognise and respect
the freedom of the individual to profess and practise, alone or in community with
others, religion or belief acting in accordance with the dictates of his own con-
science.
The participating States on whose territory national minorities exist will
respect the rights of persons belonging to such minorities to equality before the
law, will afford them the full opportunity for the actual enjoyment of human
rights and fundamental freedoms and will, in this manner, protect their legitimate
interests in this sphere.
The participating States recognise the universal significance of human rights
and fundamental freedoms, respect for which is an essential factor for the peace,
justice and well-being necessary to ensure the development of friendly relations
and co-operation among themselves as among all States.
They will constantly respect these rights and freedoms in their mutual rela-
tions and will endeavour jointly and separately, including in co-operation with
the United Nations, to promote universal and effective respect for them.
They confirm the right of the individual to know and act upon his rights and
duties in this field.
In the field of human rights and fundamental freedoms, the participating
States will act in conformity with the purposes and principles of the Charter of
the United Nations and with the Universal Declaration of Human Rights. They
will also fulfil their obligations as set forth in the international declarations and
agreements in this field, including inter alia the International Covenants on
Human Rights, by which they may be bound.