McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
1989
Volume 34
No 2
The Dean Who Never Was
John P. Humphrey*
The following is the inaugural lecture of the
John P. Humphrey Lectureship on Human
Rights, delivered by Professor John Hum-
phrey himself on 16 November 1988. This
annual lectureship has been established by
the Faculty of Law of McGill University and
InterAmicus.
La Facult6 de droit de l’Universit6 McGill et
InterAmicus ont r6cemment cr66 les Confe-
rences John P. Humphrey sur les droits et
libert6s de la personne. Nous reproduisons
ici la premiere conference prononc6e par le
professeur Humphrey lui-meme, le 16 no-
vembre 1988.
*
*
*
*Lectureship in Human Rights, Faculty of Law, McGill University.
McGill Law Journal 1989
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 34
On November 16, 1988, the Faculty of Law of McGill University, in
association with InterAmicus, the Canadian based international human
rights advocacy centet; established the John P Humphrey Lectureship in
Human Rights. The lectureship was created in the honour ofJohn Humphrey,
O.C, O.Q., whose name has become synonymous with universal human
rights. Indeed, the lectureship was inaugurated on the eve of the 40th an-
niversay of the United Nations Declaration of Human Rights, the drafting
of which was vety much the product of John Humphreys handiwork.
It would be impossible to summarize John Humphreys illustrative ca-
reer. He began teaching at the Faculty of Law of McGill University in 1936.
He served on the United Nations Secretariatfrom 1946-66, and was presented
with the U.N. award for outstanding achievement in the field of human rights
in 1988. Humphrey has been a significant member of numerous committees
and organizations for human rights, and has been honoured by awards from
many others. Highlights include doctorate degrees from not less than ten
universities.
The Faculty ofLaw ofMcGill University and InterAmicus were honoured
to receive as distinguished a personage as John Humphrey as the inaugural
lecturer on this memorable evening marking the 40th anniversary of the
Universal Declaration. Accordingly, the McGill Law Journal has chosen to
publish the lecture in honour of John Humphrey and in commemoration of
the evening.
Irwin Cotler
Professor of Law, McGill University
Chai; InterAmicus
1989]
JOHN P. HUMPHREY LECTURESHIP
Le 16 novembre 1988, la FacultS de droit de l’Universitm McGill, en
collaboration avec InterAmicus, centre international d’appui aux droits et
libert~s de la personne situ6 au Canada, a institu les Conferences John P
Humphrey sur les droits et liberts de la personne. Les Conferences ont W
instaures en l’honneur de John Humphrey, O.C., O.Q., dont le nom est
devenu, au fil des ans, synonyme de droits et libertts de [a personne. Les
Conferences ont &6 inaugures d la veille du 40ime anniversaire de la
Dclaration universelle des droits de l’Homme dont, incidemment, la r-
daction est en bonne partie de la main mime de John Humphrey.
Il serait impossible de r~sumer en quelques phrases la brillante carrire
de monsieur John Humphrey. 11 a commence a enseigner a la Facult de
droit de l’Universit6 McGill en 1936. II a &6 au service du Secrtariat des
Nations Unies de 1946 d 1966; on l’a aussi rtcompens6, en 1988, du prix
des Nations Unies pour sa contribution exceptionnelle dans le domaine des
droits et libert~s de la personne. Monsieur Humphrey a &6 une figure centrale
dans plusieurs comit~s et organisations oeuvrant dans le domaine des droits
et libert~s de la personne, et a il requ de nombreux prix de plusieurs autres
organisations oeuvrant dans ce domaine. Soulignons aussi que plus de dix
universit~s lui ont d~cern6 un doctorat.
La Facult6 de droit et InterAmicus 6taient tr~s honors de recevoir
comme premier conferencier invit ce distingu personnage qu’est John Hum-
phrey. En consiquence, la Revue de droit de McGill a d~cid6 de publier le
texte de cette conference, en l’honneur de monsieur John Humphrey et en
commemoration de cette soire.
hwin Cotler
Professor of Law, McGill University
Chait; InterAmicus
REVUE DE DROIT DE McGILL
[Vol. 34
Mr. Chairman, My Lords, Mr. Principal, Mr. Dean, Friends and
Colleagues:
Thank you, Mr. Principal, for what you have said. It is obvious that
you are a good friend. It is a great honour that McGill is paying me tonight
and I appreciate it at its full value. I have spent a great part of my life at
this university, have graduated from four of its faculties –
commerce, arts,
law and graduate studies –
and at the end of this academic year, I will
have taught here for 31 years. And I hope, Mr. Dean, that I will continue
on for at least another decade. Perhaps you will understand why I am in-
clined to identify myself with McGill.
a job I held for 20 years –
That my Alma Mater should have created during my lifetime an annual
lectureship in my name is something that I still have difficulty believing. I
have not been told the name of the benefactor who was responsible for
setting up this lectureship. I want, however, to thank him for his friendly
act. I imagine that the reason he did it was his own belief in and support
for a cause, the protection of human rights and fundamental freedoms with
which I have been identified over the years. Mr. Hobbins has just told you
that in my capacity as the first director of the United Nations Division of
Human Rights –
I drew up the first draft of
the Universal Declaration of Human Rights. This is true. It was part of my
job. Somebody must start a ball rolling. I must say, however, that I have
never attached the importance to what I did that some people now do. If
I have any real merit –
and the person who created this lectureship may
have also had this in mind –
it is because of the role that I was able to
play in keeping the United Nations human rights programme alive when
it was under attack, especially in the United Nations Secretariat. I quote
from an entry in my diary dated 13 March 1954. The Secretary-General,
the late Dag Hammarskjold, had called me to his office to acquaint me with
his thinking about his proposed reorganization of the Secretariat. In the
course of his remarks, he said that he would like to throw the two Human
Rights Covenants out of the window. His office, I must say, was on the 38th
floor. Hammarskjold was referring of course to the drafts of the two mul-
tilateral treaties, the Covenant on Civil and Political Rights and the Covenant
on Economic, Social and Cultural Rights, which were then being debated
in the U.N. Human Rights Commission and would soon come before the
General Assembly. It is true that these covenants had become a vehicle for
political controversy, particularly as regards colonialism and the right of
peoples to self-determination. But these were issues that had to be debated:
and, if that debate had not taken place in the context of the covenants, it
would have taken place elsewhere. The two covenants have now been ratified
by some 87 and 91 states respectively and are helping to revolutionize
international law. On another occasion, Hammarskjold told me that he
1989]
CONFERENCE JOHN R HUMPHREY
wanted to keep the human rights programme going at the slowest speed
possible. “There is”, he said, “a flying speed below which an airplane will
not remain in the air. I want you to keep the programme at that speed and
no greater.” Fortunately perhaps, these instructions – which I now confess
I did not follow – were given to me after the programme had been well
launched. I dare to mention them now because they illustrate the kind of
opposition with which I had to cope, even in the Secretariat, during my 20
years at the United Nations. If you want more details, you can consult a
book that I wrote some 4 years ago. Resisting that opposition was my greatest
contribution to the United Nations human rights programme.
When Dean Macdonald and Professor Cotler first spoke to me about
this lectureship, I said that they should find as the first speaker some well-
known expert in the international law of human rights. I wanted the lec-
tureship to get off to a good start. But they insisted that I do it myself; and
here I am. I apologize: they did not tell me what to talk about. But, because
we are celebrating this year the 40th anniversary of the adoption of the
Universal Declaration of Human Rights in the drafting of which I played a
role, I assumed that they expected that I would say something about an
international instrument that Eleanor Roosevelt called the Magna Carta of
Mankind. And I will do this presently, but partly because many of you here
are good friends –
and
also because it will illustrate the value of being bilingual in the two official
languages of Canada, I want to say something about how I became the dean
a unique experience, I think, in the
of this law faculty who never was –
history of the faculty. In order to do that, I must tell you something about
how I became the first director of the Division of Human Rights at the
United Nations.
some of you come from as far away as Belgium –
It was pure luck. I was not sent to the world organization by the Ca-
nadian government. It happened, however, that I knew and made friends
during the war with a French refugee. Henri Laugier had been a titular
professor of medicine at the Sorbonne. He left France because he would not
remain in a country that had come to terms with the Nazis. Somehow he
arrived in the United States. But he hardly spoke any English; I do not
remember ever even having heard him try. The Rockefeller Foundation
solved that problem by arranging to have him come to Montreal and teach
at the Universit6 de Montreal. I first met him at the home of the painter,
Louise Gadbois. Laugier and I soon learned that we had a lot in common
and we became friends: I was a francophile; I spoke French –
a rare thing
in those days for an English-speaking “wasp” with a name like mine; I was
married to a French Canadian; had studied at the Sorbonne; was an outs-
poken supporter of the Free French in the war; and together with the writer
Hugh McLennan and Emile Vaillancourt – who later became a well-known
McGILL LAW JOURNAL
[Vol. 34
Canadian diplomat –
supported in a series of radio programmes the cause
of bilingualism in Canada, including the protection of linguistic minorities
in the English-speaking provinces.
With the liberation of North Africa, Laugier left Canada and became
the rector of the University of Algiers, the only free French university at
the time. And, after the war, he became, to my great surprise, an Assistant
Secretary General of the United Nations. It was in that capacity that in
June 1946 he telephoned me from New York and asked me to become the
first director of the Division of Human Rights. “Ce sera lA”, he said, “une
grande aventure.” I had just become the dean of the Law Faculty here at
McGill, but Laugier’s offer was such a challenge that I accepted it. The
university gave me two years leave of absence, but I remained at the United
Nations for 20 years.
Apart from our friendship, I can think of only two reasons why Laugier
should have made me such an offer: my interest in minorities; and the fact
that I was bilingual in English and French, something that was important
for Laugier, who spoke no English. I say this, Mr. Chairman, because my
own experience in life is some proof of the great personal advantage of being
bilingual in these two languages. As a Jesuit priest who was going to give
me private lessons in French said to me: “Young man, if you have two
languages, you have two brains.” And I wish that some of the red-necks in
this country could hear what I am saying.
I arrived at Hunter College in New York, where the U.N. Secretariat
was temporarily lodged, on the first of August, 1946. I did not have the
faintest idea what was expected of me. I was not taking over a job from
someone else and there was nobody from whom I could seek instructions.
About all I knew was that references to human rights ran through the United
Nations Charter like a golden thread, but the San Francisco Conference had
refused to entrench a bill of rights in the instrument. Provision had however
been made for the creation of a Commission on Human Rights, arid the
Economic and Social Council had now instructed this Commission to pre-
pare a draft of an international bill of rights.
The Commission held its first session in late January and early February
of 1947 under the chairmanship of Eleanor Roosevelt. The consensus at
that first session was that the international bill of rights should be adopted
in the form of a resolution of the General Assembly, that is to say as a
declaration. It was only later that it was decided there would also be two
covenants, one on civil and political rights and the other on economic,
social and cultural rights. The Commission then appointed a drafting
committee of three: the Commission’s chairman, Eleanor Roosevelt; its vice-
chairman, PC. Chang of China; and its rapporteur, Charles Malik of Le-
1989]
JOHN P HUMPHREY LECTURESHIP
banon. This committee only met once, in Mrs. Roosevelt’s Washington
Square apartment. Chang and Malik were so far apart in their philosophical
approach that it very soon became obvious that the committee would never
itself prepare a text. Chang had studied under John Dewey and called himself
a pluralist. Malik was a Christian Lebanese who seemed to believe that St.
Thomas Aquinas had had the answers to all questions. In the result, the
committee asked me to prepare a text. But, before I could do this, the Soviet
Union, which had not at first taken the United Nations commitment to
human rights seriously, challenged in the Economic and Social Council the
arrangements that the Human Rights Commission had made for the drafting
of the Declaration. Mrs. Roosevelt responded by appointing a new commit-
tee of eight governments. This committee met at Lake Success in June. It
and its parent body, the Commission, worked so well that it was possible
to send a draft declaration to the General Assembly in time for it to be
adopted, with some amendments, as the Universal Declaration of Human
Rights, on the night of 10 December 1948.
The Human Rights Commission had not done its work alone. Many
other bodies, including other organs of the United Nation, some of the
Specialized Agencies – UNESCO, the ILO and the World Health Orga-
nization –
and certain non-governmental organizations and government
departments helped. The fact is, Mr. Chairman, that the Declaration had
no father in the sense that Thomas Jefferson was the father of the American
Declaration of Independence. One of the reasons for the Declaration’s great
authority is indeed its very anonymity. The Declaration was adopted as a
resolution of the General Assembly. Now the Assembly is not a world par-
liament and, except in house-keeping matters like the adoption of the budget,
its resolutions do not have the force of law. The Declaration nevertheless
immediately acquired a moral and political authority equal, if not superior,
to that of any other contemporary international instrument, including the
Charter of the United Nations. As I have already mentioned, Eleanor Roo-
sevelt called it the Magna Carta of Mankind. Alexander Solzhenitsyn once
said that its adoption was the greatest success of the United Nations. And
in a recent speech at the United Nations His Holiness, Pope John Paul II
referred to the Declaration as “the basic inspiration and cornerstone of the
United Nations”. But all this hardly describes the greatness of the achie-
vement. By reason of subsequent events, the Declaration has now become
much more than, in the words of its preamble, it was originally meant to
be, that is to say, simply “a common standard of achievement for all peoples
and all nations”, an exhortation, as it were, however important.
Those of you who know anything about international law know that it
and
are like
has two principal sources of authority: treaties and custom. Treaties –
the two United Nations covenants on human rights are treaties –
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[Vol. 34
contracts, and are binding on all states that ratify them. Custom is, in the
words of article 38 of the Statute of the World Court, “general practice
accepted as law”. You will note that there must be a psychological element,
what the lawyers call opinio juris. This practice must be thought to be
obligatory. One could write a doctoral thesis about this. The fact is, in any
event, that the Declaration has been invoked so many times as if it were
law; has been used so many times to interpret the Charter which nowhere
defines or even lists human rights; and so many resolutions have been
adopted saying that the Declaration shall be observed, that it is now part
of the customary law of nations and is therefore binding on all states just
as if it were a treaty. Customary law is indeed stronger than treaty law. It
is binding on all states; states cannot make reservations to it as they can to
most treaties, and states cannot escape their obligations under it as they can
by renouncing most treaties.
It turns out therefore that the adoption of the Universal Declaration
was a much more important event than anyone could have dared to imagine
in 1948. The Declaration is now binding on all states. This means, amongst
other things, that those states, including the United States and China, which
have not ratified the two United Nations covenants are nevertheless bound
by almost identical norms of law enunciated by the Declaration.
Equally important, the Universal Declaration and the many treaties that
have been inspired by it are helping to bring about a revolutionary change
in an international legal order which has become obsolete. Traditional in-
ternational law governed the relations of states and of states only. What is
happening now is that its rules are reaching down to entities that are not
states, on which it also confers rights and imposes duties. Traditionally a
horizontal order, it is now becoming vertical. This radical change in the
very nature and structure of international law –
it would be better now to
call it world law –
is also taking place in other branches of the order. The
World Court has, for example, ruled that the United Nations itself, which
is not a state, has international juridical personality, that it can, that is to
say, possess rights and owe duties under the order. But it is the world law
of human rights, which confers rights on individual men and women, that
is the principal actor in the process. When, a hundred years from now,
jurists write about the history of international law in the 20th century, they
will certainly say that by far the most important development was this
radical change in the nature and structure of the order.
The catalyst that brought about the many references to human rights
and fundamental freedoms in the United Nations Charter, in the Universal
Declaration, in the two United Nations covenants, in the regional conven-
tions on human rights, including the European Convention on the Protection
of Human Rights and Fundamental Freedoms, and in other norms of world
19891
CONFERENCE JOHN P. HUMPHREY
law relating to human rights were the gross, cynical and studied violations
of human rights that occurred in certain countries during and immediately
before the Second World War, a war that was fought to vindicate human
rights. There is, history tells us, a close relationship between respect for
human rights and the peace of nations. “Is not peace, in the last analysis,
a matter of human rights?”, the late President Kennedy once asked. His
question had already been answered by President Truman in the speech with
which the latter closed the San Francisco Conference. Referring to the United
Nations Charter, which had just been adopted, he said that it was “dedicated
to the achievment and observance of human rights. Unless we can obtain
these objectives for all men and women everywhere – without regard to
race, language or religion – we cannot have peace and security in the
world.” Franklin Delano Roosevelt had already said in his Four Freedoms
Address that human rights are “the necessary conditions of peace”. The
same truth is more formally expressed in the U.N. Charter and in the pre-
ambles of the Universal Declaration and of the two covenants. This close
relationship between respect for human rights and the peace of nations is
still another reason why this new world law of human rights is so important.
If we could build a world in which human rights are better respected than
they are now, the prospects of peace would be greater. I have said that the
contemporary state system is obsolete. We must strengthen the role of the
individual and weaken the role of the state.
I have been talking about the development of a new system of world
law. But what is law? Unlike the laws of physical science which tell us what
as that term is understood by lawyers – only tells
will happen, the law –
us what should happen. At the national level, in a country like Canada,
there exist elaborate mechanisms –
for the
enforcement or implementation of the law. These mechanisms, where in-
deed there are any, are extremely weak at the international level.
the courts, the police, etc. –
Let me distinguish between what I mean by enforcement and what I
mean by implementation. They are quite different concepts. Enforcement
implies an element of coercion or at least the fear of coercion. Implemen-
tation –
look at your dictionary – means simply making something work,
an idea that is also conveyed by the French equivalent of the word as it is
used at the United Nations, mise en oeuvre. There are very few mechanisms
of enforcement at the world level, for the simple reason that we have no
international sheriffs or police that can enforce the law against recalcitrant
countries. You will remember what I said about the contemporary state
system being obsolete. It is almost as if, at the national level, in Canada for
example, you could take a case to court – which you cannot always do at
the world level –
get a judgment against someone who has violated your
McGILL LAW JOURNAL
[Vol. 34
rights, but have no way of executing the judgment. You know what your
rights are in law but you cannot ensure their protection.
It is true that if violations of human rights are such that they are a
threat to the peace, a breach of the peace or an act of aggression, the Security
Council can invoke sanctions, even military sanctions, against a recalcitrant
state. This is, of course, enforcement. But the United Nations has no army
of its own to enforce such sanctions, and in the final analysis the work must
be done by the member states of the Organization, member states that
cannot always be counted on to respect their obligations under the Charter.
United Nations peace-keeping forces, which in the last analysis are also
national forces, do not have such a mandate. Their function is to keep the
peace between warring forces.
But there does exist a whole cluster of mechanisms of implementation:
debates in the General Assembly and other international organizations
concerning human rights, including their violation; the adoption of reso-
lutions condemning states for violating human rights, as in the case of South
Africa; studies and reports by such bodies as the United Nations Human
Rights Commission, its sub-commission and their working parties and rap-
porteurs; etc. The undeclared aim of all of these mechanisms is to educate
world public opinion. We sometimes call it the organization of shame. It is
something to which all governments, including authoritarian governments,
are sensitive.
Here is an example near home of a mechanism of implementation with
which you are probably familiar. Mrs. Sandra Lovelace, a Canadian Indian,
married a non-Indian man. This meant that, under the Indian Act as it then
was, she lost all her rights in the Indian band of which she had been a
member; whereas if an Indian man married a non-Indian woman, he
brought her into his band, a blatant case of discrimination based on sex.
Under the Optional Protocol to the Covenant on Civil and Political Rights,
Mrs. Lovelace took her case to the monitoring body set up by that Covenant
which decided that Canada had violated her obligations under the Covenant.
The United Nations had no way of forcing Canada to respect that decision.
But the Canadian parliament nevertheless removed the offensive provision
from the Indian Act. Why? Because, I have no doubt, the Canadian go-
vernment did not want to appear before world public opinion as a country
that does not respect its international obligations.
If it is true, Mr. Chairman, that in the present state of international
law and organization, an educated public opinion is the ultimate sanction
of this new rapidly developing world law of human rights, then it follows,
you will agree, that non-governmental organizations, like Amnesty Inter-
national, and even individuals have an important role to play. It is an
1989]
JOHN P. HUMPHREY LECTURESHIP
historical fact that non-governmental organizations played an important
role at the San Francisco Conference. It was Franklin Roosevelt’s idea,
shortly before his death, to invite some 40 American n.g.o.’s to send ob-
servers to San Francisco, where they became consultants to the American
delegation. By their energetic lobbying, they were partly responsible for the
inclusion of the provisions relating to human rights in the United Nations
Charter
But what I have in mind now is the work which the n.g.o.’s and the
media, when the latter are free, do to expose violations of human rights
wherever they occur. If they were not doing the job, who would? I have
myself, since my retirement from the United Nations, been a member of
two unofficial missions sent abroad by non-governmental organizations to
enquire into the state of human rights in the Philippines under Marcos and
in Greece under the colonels. If non-governmental organizations can play
this role, individual men and women can also play a role by supporting
them.
Just one more word about education. When people know what their
rights are, it is easier for them to put pressure on governments to respect
them, and governments are consequently more likely to respect them. That
is why the world-wide celebration this year of the 40th anniversary of the
adoption of the Universal Declaration is so important. Never since 1948
has the message of the Declaration reached so many people. I am not par-
ticularly fond of rock music, but when several weeks ago I sat with my wife
in the Montreal Stadium and watched over sixty thousand youngsters
swaying to the music in an Amnesty International concert dedicated to the
Universal Declaration, I knew that they were getting the right message.
And now, Mr. Chairman, let me address –
and this will finish all that
I have to say this evening – one other matter: the concept of duty. Article
29 of the Universal Declaration says that “everyone has duties to the
community in which alone the free and full development of his personality
is possible”. For every right, there are corresponding duties. I certainly have
a duty to respect the rights of others. I have a duty to respect the law. That
does not only mean that I must drive on the right side of the street, in
Canada at least, and pay my income taxes. It may mean that, in time of
national emergency, I must acquiesce when, in the interest of the nation,
the state interferes in what, were it not for the emergency, would otherwise
be my rights. It is also a fact that few, if any, human rights are absolute.
Even John Stuart Mill recognized this. And this is recognized by that same
article 29 of the Declaration, to which I have just referred. It says that “in
the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of securing
due recognition and respect of the rights and freedoms of others and of
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REVUE DE DROIT DE McGILL
[Vol. 34
meeting the just requirements of morality, public order and the general
welfare in a democratic society.” It is my duty, Mr. Chairman, to respect
these legitimate limitations on the enjoyment of my rights.
I have, Mr. Chairman, said something about how the Universal Decla-
ration was adopted and why; I have discussed its moral, political and ju-
ridical importance; I have said something about how the new world law of
human rights is radically changing an obsolete world legal order; I have said
something about the close relationship between respect for human rights
and the peace of nations; I have said something about the mechanisms,
weak as they are, that exist at the world level for the implementation of the
world law of human rights. And I have said something about duty. Let me
finish on this note. The generation to which I belong has successfully enun-
ciated international legal standards in the matter of human rights. But that
is not enough. The challenge of the future –
and I mean the immediate
future –
is how to set up efficient mechanisms for the enforcement and
implementation of these standards. This will not be an easy thing to do,
but it is something that has to be done if this planet is to have any future.
