Book Reiews
The International Protection of Human Rights. Edited by Evan Luard.
London: Thames and Hudson. 1967. Pp. 324. 3 Appendices.
($11.00)
The General Assembly of the United Nations designated 1968
as the International Year for Human Rights. And since the further-
ance of human rights is one of the most impressive of the achieve-
ments of the United Nations, this symposium is most timely. It is
particularly valuable to Canadians since the Royal Commission on
Bilingualism and Biculturalism has recently published the first
volume of its report, and the federal government has proposed the
adoption of a constitutionally entrenched Canadian Charter of
Human Rights binding all legislative bodies in Canada. There is
much to be learned from international experience in the field of
promotion and protection of human rights and fundamental freedoms,
and perhaps inspiration may be gained from the progress achieved by
co-operation between societies far more disparate in historical and
ideological makeup than the disparaties between our two main
societies spread over our five regions.
In this book ten distinguished international authorities in the
field of human rights outline the development of international assump-
tion of responsibility for promoting fundamental rights and freedoms,
and the evolution of techniques for supervising their protection. What
makes this work particularly useful is that the contributors –
seven
British, one Canadian, one Swiss and one South African –
in addition
to being distinguished scholars in their own right, are also activists.
Each has had years of practical experience
in movements or
institutions which have been engaged in the promotion of inter-
national protection of human rights.
The editor, who was formerly a foreign service officer, an
Oxford research fellow, and is now a British Member of Parliament,
sets the perspective with the opening chapter on “The Origins of
International Concern over Human Rights”, and then sums up in
the last chapter. He shows how, until recently, human rights were
considered to be a matter solely within the domestic jurisdiction of
the sovereign state. “Only in the period between the two world
wars, and above all after the Second World War, did the idea become
widespread that there existed a responsibility to secure respect for
certain standards that was universal and was independent of national
McGILL LAW JOURNAL
[Vol. 14
boundaries.”‘ What induced this widespread assumption of inter-
national responsibility? Mr. Luard suggests that two of the factors
are the glaring violations of human rights occurring in this period,
and the shrinking of distances. In our global village the sufferings
of any man must be the immediate concern of every other man.
Perhaps one could suggest as well two other interrelated factors
which are twentieth century phenomena –
total involvement of the
populations in the wars, and the propaganda apparatus established
to sustain these efforts. In other words, the victorious powers in
each of the two World Wars urged their peoples to support the
struggle to “vanquish barbarism” and to establish a world order
based upon respect for elemental human values. They sought allies
all over the world and tried to induce them to achieve the same aims.
President Roosevelt proclaimed the Four Freedoms, and he and Prime
Minister Churchill issued the Atlantic Charter. If the victorious
United Nations (a term in use by 1942) set the attainment of these
rights as an objective, then surely the new international organization
would have to promote them.
One of the results of World War I was that a large number of
East and Central European states arose as a new expression of the
national hopes of peoples long subject to the German, Austrian,
Turkish, and Russian Empires. It was impossible to draw boundaries
without including national minorities within the new states. C.A.
Macartney, who is probably the leading authority on Central Europe
and its minority groups, gives a concise summary of the Minorities
System which was devised to enable the League of Nations to protect
the subject minorities. The Minorities Treaties, which the newly
created countries had to sign, were an important breach of the
principle of domestic jurisdiction of states. Probably as a result,
they were the source of such bitterness and friction that the practice
was not
continued by the United Nations. Professor Macartney
concludes that perhaps a minorities system could work if these
obligations were imposed only where “minority situations exist which
might really endanger the peace of the world.” 2 But is this not an
affirmation of the same object which defeated the Minorities System?
In other words, one ignores those minorities which do not have a
strong foreign patron, and becomes embroiled in the disputes which
threaten the peace because a strong power, like Nazi Germany, asserts
a right to protect its Herrenvolk.
It is interesting, in this consideration of the evolution of inter-
national protection of human rights, to compare the emphasis of
I P. 306.
2p. 37.
No. 2]
BOOK REVIEWS
the League with that of the United Nations. The League Covenant
made no reference to individual rights, but did attempt to protect
group rights through the Minorities System and the Mandates System.
The United Nations Charter, on the other hand, although it continued
the Mandates System through the Trusteeship System, dropped the
minorities’ protections, but placed considerable emphasis on the
promotion of the human rights and fundamental freedoms of the
individual.
Dr. John Humphrey, the Canadian who left McGill University
in 1946 to become the Director of the Division of Human Rights
in the United Nations Secretariat and continued to hold that position
until 1966, sums up the transition and the recent developments in a
chapter on “The United Nations Charter and the Universal Declara-
tion of Human Rights”. He shows that although “effective inter-
national machinery for the protection of human rights was never
formally envisaged as a peace aim,” 3 the pressure of the smaller
powers and non-governmental organizations (N.G.0’s) resulted in the
Charter making seven references to human rights and fundamental
freedoms. Perhaps the greatest achievement of the United Nations
was the adoption of the Universal Declaration of Human Rights on
December 10th, 1948. Dr. Humphrey describes the drafting and
negotiation stages leading to its adoption. This achievement is all
the more remarkable when one considers that this took place when
the “cold war” was just setting in, when Czechoslovakia fell under
Communist control, and Yugoslavia was expelled from the Cominform.
What is almost as remarkable, as Dr. Humphrey suggests, is the
subsequent effect of the Universal Declaration as a standard of
achievement all over the world. It has been incorporated into treaties,
constitutions, and judgments of national courts, and may now even
be a part of customary international law.
The drafting of the Universal Declaration, and the subsequent
conventions and covenants that have followed from it, was the work
of the United Nations Commission on Human Rights. A member
of this Commission since 1962, and a former head of the Inter-
national Division of the U.K. Home Office, Sir Samuel Hoare, gives
a detailed (perhaps too detailed) description of the work of this
Commission, not only in drafting the human rights instruments of
the United Nations, but also in undertaking studies and drawing
up various recommendations and proposals
in this field for the
consideration of the Economic and Social Council of the United
Nations. In view of the amount of effort expended, it is regrettable
3p. 39.
McGILL LAW JOURNAL
[Vol. 14
that more publicity about the Commission’s activities has not been
given elsewhere. How many people in Canada know of these materials,
much less about the availability, through the Commission, of research
fellowships in the field of human rights?
Other United Nations bodies have discussed specific instances
of violations of human rights. The editor describes these in a chapter
on “Promotion of Human Rights by UN Political Bodies”. These
activities of the United Nations, involving political rights in such
places as Spain, Korea, and the East European countries, received
more publicity at the time, but have probably had less lasting effect
than the adoption of the various human rights instruments. Somewhat
more effective have been the debates of the General Assembly and
the Security Council on questions of self-determination in Indonesia,
and in the countries of the Mahgreb, Cyprus, Cameroun, and Togoland.
However, even here, as Mr. Luard acknowledges, the successes have
been scored in those regions which were already recognized as being
ripe for self-determination.
One of the most successful experiments in the international protec-
tion of human rights has been the European Convention on Human
Rights. This is discussed in a chapter by A.H. Robertson, one of
the most eminent authorities on European institutions, and currently
Head of the Directorate of Human Rights of the Council of Europe.
The European Convention has accorded a new status to the individual
in international law in allowing the right of individual petition to
the European Commission of Human Rights. Although this right
is only accorded to the nationals of states members which expressly
declare acceptance, it is encouraging that eleven of the eighteen
members have done so. The Convention represents one of the clearest
breaches of the principle of domestic sovereignty. It has induced some
member governments to bring their own legislation into line, and
in the case of Norway has even resulted in an amendment to the
constitution. It has been applied in national courts in over 200
instances. Finally, it has been the blueprint for the Bills of Rights
that English constitutional lawyers have drafted for many of the
newly independent members of the Commonwealth.
Several of the writers acknowledge the important role played by
unofficial organizations both in establishing standards and in inducing
governments into action. Peter Archer, a British Member of Parlia-
ment and an Executive Member of Amnesty International, surveys
the activities of these organizations, starting with the Anti-Slavery
Leagues of the late eighteenth century. The need for these organiza-
tions is cogently summed up by Mr. Archer: “The protection of
individuals from government officials can never safely be left to
No. 2]
BOOK REVIEWS
government officials.” 4 The activities of private organizations in a
specific professional field are described by a Swiss journalist, Armand
Gaspard, in a chapter on “International Action to Preserve Press
Freedom”. The United Nations has been singularly ineffective in
this field, and the work has had to be carried on by international
associations of editors, publishers, and journalists.
The International Labour Organization has probably been one of
the most effective of the international specialized agencies in the
field of economic rights. Its more recent activities in promoting and
protecting the right of association and organization of workers in
their trade unions is described by C. Wilfred Jenks, a Deputy Director-
General and previously Legal Adviser of the International Labour
Office. Despite the difficulties of attempting to supervise industrial
relations in countries widely disparate in ideology and economic
development, the I.L.O. has devised investigative and reporting
techniques which have been amazingly successful even in the most
difficult circumstances. Some of the difficulties faced by the various
I.L.O. Committees involved in the protection of trade union rights
illustrate the patience that is required in a field where two major
sets of countervailing forces have to be recognized. The first of
these is the necessity of protecting the labour movement without so
alienating governments as to induce them to defy international
pressures. The second is the necessity of ensuring that an over-zealous
promotion of one type of right or freedom does not result in the
overriding of another.
Without doubt the best known conflict in the international protec-
tion of human rights has been that between the United Nations and
South Africa. A survey of the history of this conflict and an
assessment of its possible future course is provided by R.B. Ballinger,
a South African who is now an American academic. It is difficult
to argue with some of Professor Ballinger’s conclusions. The Na-
tionalist government of South Africa is more firmly entrenched
than ever, and there is no evidence that a non-white revolt can be
mounted.5 The simple fact with respect to the effect of United
Nations pressure on South Africa is that those who press strongest
for sanctions do not have the means to enforce them; while those
who have the means are anxious to avoid the consequences. Therefore,
it will be the reactions and decisions of the major western powers
that will determine future events more than United Nations debates.6
4 p. 181.
5 Pp. 271 et seq.
6 Pp. 260-1, 270.
McGILL LAW JOURNAL
[Vol. 14
However, while one cannot question these assertions, it is not necessary
to adopt Professor Ballanger’s implied conclusions that since it
is
impossible to see how the demand for one man one vote can lead
to a peaceful resolution of the South African problem, therefore
there is need for more patience, argument, and more
limited
objectives. 7 Twenty years of United Nations patience and argument
has only resulted in more intransigence by South Africa’s dominant
white minority. This is, unfortunately, not the first time in history
that a privileged group has failed to read the handwriting on the
wall, and it will, unfortunately, not be the first time that change is
brought about only through bloodshed.
The South African dispute in the United Nations serves to bring
into focus the fundamental issue in human rights development in this
century –
the breaching of the principle of domestic jurisdiction
of sovereign states by the international community for the furtherance
of an ideal to which enlightened mankind has committed itself.
This issue is discussed by J.E.S. Fawcett, a member of the European
Human Rights Commission since 1962. Although domestic jurisdiction
will continue to restrict international competence in the field of human
rights because of the occasional emergency needs of security, because
it is preferable for complainants first to exhaust domestic remedies,
and because
it may be difficult to overcome the power of an
intransigent state, there is today general ecumenical acceptance of
international supervision.8
In sum, this is a book that should be read by Canadians, especially
those who are immediately concerned in the public affairs of this
country. The various contributors have not been able to give a
detailed enough survey to meet the needs of the international law
specialist, and one might have hoped for more assessment than
narrative in some cases, nevertheless the reader cannot help but
come away better informed, or at least re-informed.
Walter S. TARNOPOLSKY
7 Pp. 282-3.
8 Pp. 296-300.
* Dean, Faculty of Law, University of Windsor.
No. 2]
BOOK REVIEWS
Journal of the International Commission of Jurists: Special Issue for the
International Year for Human Rights, vol. VIII, no. 2. Edited by Sedn MacBride.
Geneva: International Commission of Jurists. December 1967. Pp. xi, 148.
($1.50 U.S.).
Nothing could be more appropriate than that the International
Commission of Jurists should devote the two issues of its Journal
for 1968 to human rights. 1968 is International Year for Human
Rights, having been so proclaimed by the United Nations in cele-
bration of the twentieth anniversary of the adoption of the Universal
Declaration of Human Rights. And of all the international voluntary
organizations interested in the promotion of human rights, it is the
International Commission of Jurists which has been the most active.
A quick glance at the table of contents is enough to reveal the rich-
ness of the volume; for there are articles by Ren6 Cassin, Louis B.
Sohn, Sadruddin Aga Khan, J. J. De Arechaga, Morris B. Abram,
Lord Shawcross and T. 0. Elias, all of them well-known authorities
on the international law of human rights and some of them also
men of action who have contributed to bringing the law to the point
which it has reached today. The two articles on Freedom of Thought,
Conscience and Religion by Morris Abram (who is the American
representative on the United Nations Commission of Human Rights)
and A Free Press by Lord Shawcross are as good as anything in
the literature. Professor Sohn’s evaluation of the Universal Decla-
ration of Human Rights is notable and puts him in the forefront
of an increasingly large group of international jurists for whom
the Declaration has become, whatever the intentions of its authors,
binding on states as part of positive international law. “In a rela-
tively short period, the Universal Declaration of Human Rights has
thus become,” he writes, “a part of the constitutional law of the
world community; and, together with the Charter of the United
Nations, it has achieved the character of a world law superior to
all other international instruments and to domestic law.”1
Seen MacBride, the Secretary General of the International Com-
mission of Jurists and the editor of the Journal, has contributed an
introduction. He is to be congratulated on bringing out a volume
which will have an important place in the growing literature on
the international promotion of human rights.
John P. Humphrey.*
Ip. 26.
* Professor, Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 14
The Elizabethan Court of Chancery. By W.J. Jones. Oxford: Clarendon Press.
1967. Pp. xvii, 528. ($15.00)
Equity, equitable principles, equitable remedies and the device
of the use and the trust are a cornerstone of the common law system
which straddles the world. Yet, one wonders, how many stop to reflect
that the core of this law was created through the work of a court
which was carried on in a corner (literally) of the great Westminster
Hall in London and in a downstairs room of an old house off Chancery
Lane? How many know today that the work of Lord Eldon which
fills the Vesey Reports was done, just across the Lane, in a makeshift
court in the dining hall of Lincoln’s Inn?
Possibly these are random facts without much significance but
their interest springs from the essential curiosity which any man
must have for the history of the institutions which are his daily fare.
For some, that curiosity becomes the basis of a career in legal
historical work and for others, it is satisfied by the occasional
scholarly and readable book which is content to inform and to
fascinate and to leave it at that. Modern scholarship in legal history
is not so plentiful as the material permits and, as a result, there
are large areas where little re-examination has been done of docu-
ments originally examined for ronderous nineteenth century works.
Indeed, much manuscript material, some of which was unknown to
the Victorians, has never been adequately examined. In recent years,
however, one of those areas has been brought out of the twilight,
namely, the old Court of Chancery which was the origin of modern
Equity and suffered its demise in the extensive rearrangement and
unification of the English superior courts in the 1870’s. Since 1953
Mr. D.E.C. Yale of Cambridge University had edited three period
works for publication: Edward Hake’s Epieikeia, a dialogue on
equity in three parts,’ Lord Nottingham’s Chancery Cases 2 (in two
volumes with a scholarly introduction) and, most recently, Lord
Nottingham’s “Manual of Chancery Practice” and “Prolegomena of
Chancery and Practice” 3 (again with an introduction). On the lighter
side we have had a publication for the first time of Lord Eldon’s
Anecdote Book. 4 Mr. Yale’s carefully edited works, and the new
1 (New Haven, 1953).
2Vol. I (Vol. 73 of the Selden Society for 1954),
(London, 1957); Vol. II
(Vol. 79 of the Selden Society for 1961),
(London, 1961).
3 (Cambridge, 1964).
4Edited by A.L.J. Lincoln and R.L. McEwen, (London, 1960).
No. 2]
BOOK REVIEWS
Eldon publication, have contributed considerably to our knowledge of
the law and practice of seventeenth and eighteenth century Chancery.
Now we have the book under review, originating from a thesis
presented to the University of London in 1958, by an author who
is of the University of Alberta at Edmonton, on the subject of the
Court of Chancery in the period from 1558 to 1603. The author
necessarily gives himself a good deal of freedom either side of these
dates, marking the reign of Elizabeth I, but this is the central period
of his study.
It
is both a scholarly and a readable book and the Oxford
University Press is to be congratulated for making available to the
public something which is not of central academic importance as
seen by some contemporary legal publishing criteria. As this is a
book which has an appeal for the curious reader as well as the
professional legal historian, knowledge of its general thesis may
be of value to the reader of this review. Dr. Jones sets out to show
the impact of Tudor administration upon Chancery and how there
emerged between the reign of Henry VIII and 1617 a distinct court
of record equal in terms with King’s Bench, Exchequer and Common
Pleas, which would ultimately eliminate the opposition of local courts
and concentrate all ‘equity’ in its own hands. This was the emergence
of the modern concept of equity jurisdiction. The author reveals very
effectively how much this period in Chancery was watershed, as
indeed was the whole Elizabethan period. Social and economic change
on a vast scale was going on and Chancery, like the other courts
both central and local, was caught up in it, whatever its inborn
desire for change. During this period, then, the structural and pro-
cedural pattern of Chancery was set for the final three hundred
and fifty years of the court’s existence thereafter.
In part, as Dr. Jones explains, the lawyers of the day in the central
courts at Westminster desired change. In Chancery, men like Nicholas
Bacon and Thomas Egerton, both of whom held judicial office during
this period as Master of the Rolls, the latter being also Lord Keeper,
certainly desired change. Egerton in particular (who is something of
a hero for the author, despite the author’s better judgment one feels)
not only fiercely defended his office against encroachment but at-
tempted to give the administrative structure and procedure of
Chancery a degree of order and permanence. In order to create fixed
rules and procedural precedent, he made every use of the entry
books and decree rolls introduced during Henry VIII’s time. And it
was this kind of change which translated Chancery above the level
of the older traditions of local equity courts, on to a plane of im-
portance with the other courts of Westminster Hall.
McGILL LAW JOURNAL
[Vol. 14
Why then, the reader asks, did Chancery procedure become such
a mess by the late eighteenth century that it was a national scandal?
This is the other aspect of Dr. Jones’ thesis. By its written records
affording precedent, Chancery was caught up in change and became
the court of Equity but Egerton and those who succeeded him were
part of the system which was changing and which they were helping
to change. They were essentially men of limited vision at a crucial
period and their legacy lasted; they failed to see that ‘due process’
was not enough if it was painfully ‘slow process’. Did the Chancery
lawyers of this period ever really know why the litigant came to
court? It sounds an odd question today but litigants themselves
helped the confusion by demanding all sorts of services from the
Chancery of the time. This in itself was a product of the prolix
procedure. Some sought to delay the vindication of others’ rights,
others sought to gain temporary solutions, others were content to
go along with procedural complexity as if it were part of life, and
probably only a few sought final arbitration in the modern sense.
Even if the judges of Chancery saw what litigants should be able
to expect, Dr. Jones points out, they did not know what to do about it.
And no Chancery judge did know until the great reforms of the
nineteenth century got under way after 1832. To hack away pro-
cedures seemed merely to deprive the litigant of his rights; he now
got ‘quick process’ without ‘due process’.
Another fascinating thing to emerge from this book is the im-
portance which attached to patronage during this period. Adminis-
tration, the Tudor genius, meant politics; politics meant power; and
power was achieved by the control of offices and preferments. He
who lost the right of patronage lost power and without power no
changes could be pushed through. The struggle for patronage during
this time is therefore crucial as a clue to the men the time produced
and the horizons they were bound to have. The Elizabethans never
solved this problem, however considerable they were in adminis-
trative skills. And the men of Chancery in the seventeenth and
eighteenth centuries could not escape from the same malaise of patron-
age and all the muddle and pointless procedure which it brought.
Here was the beginning of the saga that, in the nineteenth century,
in the dying years of the Court of Chancery, was to produce Charles
Dickens’ immortal novel Bleak House. If there was ever a case of a
court of law getting a bad press, so to speak, this was it.
Dr. Jones presents his thesis in three sections. The first deals
with the personalities of this period in Chancery, especially Thomas
Egerton who, as we have seen, had a key role as Master of the
Rolls and Lord Keeper; in this section the author also includes a
No. 2]
BOOK REVIEWS
description of the Chancery offices. The second deals with the pro-
cedures of Chancery right through from the initial writ of subpoena
to the final stages of determining an action. The third traces the
relationship of Chancery with other courts, both local and central,
during the period. It is a useful breakdown of the material and the
three are well knit together. Even the casual reader will find that,
though the section on procedure provides the stiffest reading, its
introduction through the rersonalities gives it an immediacy of inter-
est. In the reviewer’s diagnosis Dr. Jones has softened the treatment
of personality in order to secure an even development in the first
part of his thesis on the Court of Chancery as such. This was no
doubt a sound decision but the reviewer found the judicial person-
alities not making the individual impression more regular biographical
treatment might have given. The author does not, even of Thomas
Egerton, paint a totally rounded picture of a man. Far too little
serious biographical work has been done on English judges and, as
people give flavour to the period, so it might have given more flavour
here.
Legal historians will find that the book is well researched; there
has not been too much reliance on published sources and a great
deal of interesting work has been done in tracking down and valuably
interpreting sixteenth and seventeenth century manuscripts. The
style is also lively and for all his knowledge the author does not
expose his reader to the rigours of fact indigestion. It is regrettable
that this book is solely concerned with the administration, the pro-
cedure and the personalities of the Court of Chancery; substantive
law has the slightest treatment but that decision to exclude no doubt
was forced upon the author. There is a chapter on Fraud and Fair
Play but it does not seem to carry the reader further than existing
publication would carry him. However, it must be said that to have
included a discussion of the substantive law of this period on any
considerable scale would probably have upset the balance of the book
and proved most difficult to work satisfactorily into the theme. Dr.
Jones does truly imply that procedure is the vehicle for substantive
law and that to understand the procedure is to achieve a good deal.
This allows him to talk about the injunction, for example, and no
doubt he is justified in leaving it at that.
The book is attractively produced in the usual high standard of
the O.U.P. and the whole production is a tribute both to author and
publisher. By why could not we have had a photograph? There is
not a single reproduction of a painting (what did Egerton look like?),
a print (what did the interior of Westminster Hall look like?) or an
etching (where was the Rolls Court situated?). The reviewer for one
McGILL LAW JOURNAL
[Vol. 14
would have enjoyed any or all of these and so, he suspects, would
most people. Watch scholar or man on the Clapham omnibus in a
bookstore! The visual is the first thing to stir his imagination; the
word may be more communicative but it is a different and comple-
mentary process. Is there some kind of convention about the kind
of book that can carry photographs or reproductions? If there is,
it is surely time to reconsider it.
D.W.M. Waters*
* Professor, Faculty of Law, McGill University.
