The Commission for the Promotion of Human Rights is a possible device for releasing the atomic energy of international law.

International law has developed under a cloak of fictions among which the sovereign state held first place. Sovereignty was traditionally conceived as an absolute, but this fiction did not stand the test of the facts of international life and we had “states” possessed of varying degrees of “independence” and of varying amounts of “sovereignty.” To transpose a phrase of Mr. Justice Holmes, sovereignty was a ghost, “seen in the law, elusive to the grasp.” When we came to deal with people, with men and women, we international lawyers had to rely on other fictions in an attempt to explain how they were affected by the actions of states.

The Charter of the United Nations does not shrink from recognition of the fact that people are the realities, for all that it pays lip-service to tradition in asserting that the “Organization is based on the principle of the sovereign equality of all peace-loving states.” By Article 68 of the Charter, a duty is imposed upon the Economic and Social Council to set up a commission for the promotion of human rights; no other specific commission is so required. The multiple references in the Charter to human rights and fundamental freedoms graft these living organisms upon the international body politic. They are no longer to be excluded from international consideration on the plea that they are purely “domestic” questions. As the Permanent Court of International Justice pointed out in one of its most fruitful opinions, questions which under ordinary tests of international law are purely domestic, may by treaty be made matters of international concern. Human rights are now matters of international concern—not merely in defeated states or states of lesser rank upon whom the more powerful may impose minorities treaties, but in all states everywhere in the world.

But, just as the release of atomic energy was at first destructive and still holds only the potential of greater human happiness, so the revolutionary effect of the agreement in the Charter might prove destructively revolutionary if it is not wisely used and developed.

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The Commission for the Promotion of Human Rights requires a rare combination of courageous imagination and common sense. If it reaches too far too fast, our experience warns us that a paper undertaking will remain that and nothing more, if indeed it is not repudiated so that it becomes something less. It must kindle the imaginations of the peoples of the world but it must not prematurely assume that the strongholds of traditional statesmanship are ready to accept these far-reaching new ideas. What first steps can be taken?

First, there is the composition of the Commission. It must command the participation of men and women who have not only zeal but also prestige in their respective countries and throughout the world. It presumably will not be in continuous session and something should be sacrificed to make the service of outstanding people possible. It should have a permanently functioning staff of experts skilled in sociology, government, economics and law. There are facts to be marshalled and the Commission must build on facts far more than on exhortations or denunciations.

Second, there is the program of the Commission. It could set about at once undertaking to remedy some of the crying evils which beset human beings in many if not all quarters of the globe. Such a frontal attack would be bad strategy; it would not succeed. It would estrange potential governmental allies. The Commission must remember that it will be talking a new language, venturing into new areas of international cooperation. Neither peoples nor governments are yet aware of the consequences which can flow from international, from universal recognition of the rights of man. It is safe to assert that even in the United States only a pitifully small percentage of the people have even read the Charter or have any concept of what energy is being released by Article 68. There must be a basis on which to proceed.

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What, specifically, are the “human rights” which are to be “promoted”? (We must brush aside the infelicity of the language which characterizes the task as one of the “promotion” of rights; it is sufficient to note that promotion is not primarily the same as enforcement of respect for rights—the Commission has not yet any such power.) These human rights must be defined, not in a vacuum but in terms of the constitutions and laws and practices and habits and prejudices of more than seventy states of the world. Americans will do well to bear in mind that not every personal guarantee which is congenial to our institutions is well-adapted to other civilizations. There are minima no doubt, but they must be searched out and defined. It may be, for example, that jury trials are necessary to the well-being of every tribe in Africa, but it may well be that they are not. The Commission for the Promotion of Human Rights must deal not only with the states which are possessed of an advanced civilization but also with the primitive peoples of the world. It should have the closest contact with the Trusteeship Council of the United Nations but beyond that it must court the cooperation and confidence of colonial offices, since it is too much to hope that all colonial areas will at once be put under the trusteeship system. Yet Article 73 of the Charter requires all colonial powers to share the ideals and purposes which will inspire the Commission for the Promotion of Human Rights.

The considerations which have been stated lead to the conclusion that the Commission must begin with a period of study followed by a period of drafting proposals with a view to the preparation of an international bill of rights. Such a bill of rights should be more than that indicated by Secretary of State Byrnes in his radio address of October 5, admirable though his proposal on this point is as far as it goes. It should be different from the expert draft presented by Professor Lauterpacht, to which Mr. Corbett referred in the November issue of COMMENTARY, and which Professor Dunn discusses in this issue.

Professor Lauterpacht’s draft seems to me, if I may say so with respect and with the admiration which I feel for the author and his excellent book, too ornate. We need as a first step something more Doric. The preparation of such a draft is a work not of weeks, but perhaps of years. It should be studied piecemeal and periodically by the Commission, in the full glare of publicity; comments will not be lacking and some of them will be constructive. When the draft has been weathered by this process, it may be submitted to the governments of the world for signature.

Research and drafting and discussion seem slow and spirit-dulling tasks. Other work may be carried on by the Commission simultaneously. Content could be put into the traditional international law standard of civilized justice as a criterion for the treatment of people everywhere. Expert advice could be given on the drafting and utilization of minorities treaties. Agreements should be sought, with respect at least to certain areas in the beginning, upon a system of filing and hearing petitions as Professor Lauterpacht suggests. Again cooperation with the Trusteeship Council is vital for this task. Especially fruitful should be work in any trusteeship area which is placed under the direct administration of the United Nations Organization itself. If there should be such areas, the Commission might well for some time concentrate on helping to make them laboratories and models.

The Commission will be a subsidiary of the Economic and Social Council. It will be through the Council that the Commission will reach the General Assembly, that “town meeting of the world.” If the Commission proceeds on irrefutable factual bases, it may acquire force as irresistible as that of a glacier, but as warm as human hopes and sympathies.