Nason, Rachel Conrad

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Buffalo Law Review Volume 13 Number 2 Article 8 1-1-1964 Judge Halpern As an Advocate of Human Rights Rachel Conrad Nason United States Department of State Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Legal Biography Commons Recommended Citation Rachel C. Nason, Judge Halpern As an Advocate of Human Rights, 13 Buff. L. Rev. 333 (1964). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol13/iss2/8 This Memorial is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. JUDGE HALPERN AS AN ADVOCATE OF HUMAN RIGHTSUSTICE PHILIP HALPERN began his service in the UN as a member ofthe United States Delegation to the Commission on Human Rights at its1953 session in Geneva. His competence was immediately recognized, and theHuman Rights Commission elected him soon thereafter to its Subcommissionon the Prevention of Discrimination and Protection of Minorities. The Sub-commission is composed of fourteen experts from different countries. Theyserve in their individual capacity, and thus without the protection of govern-mental instructions when forced to vote on controversial issues. Judge Halpern,as his colleagues usually called him, was known for the depth and generosityof his concern for human justice. His skill and readiness in speech broughthim into frequent conflict with those of other opinion, particularly with mem-bers from the Soviet bloc. That he retained their admiration as well as theirpersonal friendship was a tribute to his quality of mind as well as his warmthof feeling.The Subcommission meets annually in New York -in January. At his firstsession, in January 1954, Judge Halpern faced a preliminary report, preparedby Professor Ammoun of Lebanon as a special rapporteur on discrimination inin education, which inter alia coupled the United States with the Union ofSouth Africa in requiring racial segregation in public schools. Judge Halpernrefuted Soviet and other attacks arising from this statement by pointing to thetremendous effort then under way to improve schools in our southern Statesand showing by statistics that the number of Negroes in American collegesexceeded the entire college population of many countries. At no point, however,did he defend the doctrine of racial superiority nor deny the need for change;on the contrary, he sought by all possible means to press the claim of childrendenied full educational opportunity, either because schools were lacking, orbecause they were denied free access to the great ideas of history and philosophyby communist or other political strictures.Fortunately for the United States, and to Judge Halpern's own greatsatisfaction, the Supreme Court decision of the following March, denouncingthe doctrine of "separate but equal" in education, came in time to change thefinal report; in it Dr. Ammoun hailed the United States as a leader in seekingrevision of discriminatory education laws.In the meantime judge Halpern had been invited by the Subcommissionto prepare an outline for a study of discrimination in religious rights andpractices. In his study, presented in 1955, he laid out the basic human rightsprovisions relating to religious freedom in the United Nations Charter and inthe Universal Declaration of Human Rights. He also pointed to threats toreligious believers existing in many areas, and though he named no particularcountries, the U.S.S.R. member sought at length to turn the Subcommission'sattention to other matters.BUFFALO LAW REVIEWAs the result the Subcommission undertook a full study of discriminationin religion and named its Indian member, Sir Arcot Krishnaswami, as specialrapporteur. A critical element in this study plan was freedom for the rap-porteur to make use of all sources of information in his discretion. AlthoughSoviet-bloc members sought to limit the rapporteur to official reports, JudgeHalpern and others succeeded in maintaining his access also to non-govern-mental and scholarly sources. Recognizing that the non-governmental organiza-tions in consultative status with the Economic and Social Council (NGO's)-a group of some hundred international organizations with technical competence-would be of great importance in providing material for this study, he soughtthem out to urge their responsibility for research and reporting.Among these NGO's were a number of interested religious groups-Catholic, Jewish, Protestant; among them also were the International Leaguefor the Rights of Man and civic and labor organizations with experience ingathering data from refugees as well as from their own members. Few of themwere equipped at that time with staff or expert resources for the task, but theyresponded to his promise of support for their efforts. While their contributionto the Krishnaswami study proved relatively small, plans developed amongthe NGO's provided highly significant documentation a few years later, whenthe Subcommission undertook an examination of the anti-Semitism touchedoff across the world by pre-Christmas incidents in Germany.Roger Baldwin, perhaps the dean of the NGO representatives, sittingsession after session in the United Nations, speaks of his participation in theSubcommission during Judge Halpern's period of service as a "satisfying duty."The meetings, he writes were marked by lively debates and satisfyingconclusions....Philip Halpern brought to bear a power of mind and expression sokeen and quick that he often left a lot of us struggling to catch up.... He has left in the accomplishments of the Subcommission, whereso much of the UN human rights activities start, a record and animpress of enduring value.1Repeatedly in the debates the Soviet members of the Subcommission ac-cused free governments of tolerating "hate propaganda" and sought to banfree speech. Judge Halpern was scathing in exposing the hypocrisy of theseproposals. "The menace in the world today," he said in an early session, "isnot hatred propaganda by individuals to be prevented by government law.The menance in the world today is government-directed and government-inspired propaganda." He continued:As a co-religionist of six million who were killed by the lastauthoritarian government that went down to defeat, I need no re-minder of the fact that it is not the private agitation which needsprohibition but agitation by governments. That is the phenomenon1. Letter from Roger Baldwin to Rachel C. Nason, November 3, 1963.JUSTICE PHILIP HALPERNof the Twentieth Century-the use of the advocacy of racial, reli-gious, national or linguistic hostility as an instrument of nationalpolicy for one of two purposes, either for the purpose of taking thisparticular minority group, whether it is the Jews in Germany or anational group in another country, and using them as a scapegoat todivert the attention of the people from their very real grievancesagainst their government, to divert their attention from the social,economic and political evils for which the government was responsible,and to find a scapegoat to whom, in a Freudian trick, the governmentattempts to transfer public resentment.Another phenomenon of the Twentieth Century is the use and ad-vocation of racial, national, religious hostility as an instrument ofnational policy for the purpose of advancing and imposing a mono-lithic national culture. A totalitarian country cannot afford to havewithin its borders any cultural group that maintains an independentcultural point of view which it shares with persons outside of itsborders. It must blind its peoples to the existence of an outside world.They can see the outside world only in the mirror which they arepermitted to look into after it has been carefully screened through thethought control and mind control of its dominant propaganda agen-cies.2Judge Halpern favored suppression of government propaganda as ameans of protecting free speech for the individual. He believed deeply in t~epower of a free people and a free press to distinguish truth from error. In a1954 statement which was quoted widely by his colleagues in later sessions, hestated his philosophy, and likewise his faith in American democracy, in classicterms:Here we have the problem of the extent to which it would bewise to give governments the power to suppress free speech and tosuppress free press on the part of its own citizens. And I think thisSubcommission, after very thoughtful consideration during two priorsessions, struck the balance at the right place, that the advocacy ofhostility becomes a subject of punishment or prevention by thestate when it constitutes an incitement to violence.That is the theory upon which the free democracies of the worldstand. We take the position that it is incompatible with our conceptof freedom of speech and freedom of the press, freedom of expressiongenerally, to entrust any government agency with the power ofcensorship. It is only when the advocacy reaches the point of an overtact, of inciting to violence or illegal action, when in accordance withthe phrase used by the great American jurist Oliver Wendell Holmes,"there is a clear and present danger that the words will incite toaction," then according to the concept of democracy it is the func-tion and duty of the government to step in.If a government steps in before that time, at an earlier stage,then history has demonstrated that the cure is worse than the dis-ease, and there is a much greater danger of injury to freedom through2. U.N. Sub. on Prey. of Discrim. and Prot. of Min., 6th Sess. (E/CN.4/Sub.2/SR.130)(1954).BUFFALO LAW REVIEWgovernmental censorship than there is through occasional and spo-radic advocacy by individuals of nonsensical hostility.We take this view, and so does every democracy that has con-fidence in the strength of its own democracy, confidence in thestrength of its own people, confidence in the ability of its people toshake off improper and foolish appeals. It is the view of all suchdemocracies that they need no governmental protection againstobjectionable ideas. We give full freedom to crackpots. We take theview that the foolish vaporings of a crackpot will disappear in thebright sunlight of free discussion just as the early mist disappearsin the sunlight of the dawn. We see a much greater menace ofthought control in governmental censorship no matter how laudatoryand commendable may be the objective.• . .If I may quote from a recent opinion of an appellate courtin New York State-and I trust no one will ask me who the authorof this sentence was-a very recent opinion which expresses mypersonal philosophy-and I think it also expresses the philosophy ofthe free democracies, confident as they are in their strength to shakeoff, to receive and digest and reject improper propaganda pleas-this quotation runs as follows: "Freedom of expression is freedomalike for 'propaganda' which we deplore and for 'education' of whichwe approve."The difference between propaganda and education, when thedrawing of that distinction is entrusted to government, is only in theeye and in the mind of the government, because it is the govern-mental censor who at the end decides what is education and what ispropaganda. The things he does not like he calls "propaganda" andforbids them. The things of which he approves he calls "education."Once we set our feet on that path, once we entrust to any govern-mental authority the power to draw that distinction with finality, totake either the pre-censorship step of injunction or the post-publica-tion step of criminal prosecution, we are on the road to totalitarian-ism.3In January 1962, when the Berlin wall was fresh, the Subcommission wasengaged in a study of the right of everyone to leave any country, includinghis own. During the debate news came of the first escapes from East Berlinby tunneling under the wall. The spectacle of men and women in such miserymoved judge Halpern sharply; he denounced the violation of human dignityin forcing men to "crawl like worms." Stung by his rebuke, Mme. Miranova,the Soviet member, demanded time for a reply in which she read at lengthfrom Senator Javits' book on "Discrimination, USA." The judge cancelled along-standing appointment to remain in the room while she read; it was onlycourteous, he said, to "take his punishment." The echoes of this exchangepervade the Subcommission's final report on this study, completed in 1963;despite Soviet efforts to delete reference, the Berlin wall is described as anultimate example of a government's efforts to imprison its people.The judge's response to Mine. Miranova's long tirade was one of grati-3. Ibid.JUSTICE PHILIP HALPERNtude for Senator Javits' right to criticize his country and to work as a citizenfor its betterment. "The history of liberty," said the Judge, "is not the historbrof the extension of governmental power. It is the history of the extension ofgovernmental restraints." He continued:If I may refer to our own Bill of Rights, which has stood the test oftime for over 160 years and which we believe has developed in ourcountry a kind of free democracy which we hope other countrieswill look to, as we looked to other countries as a result of their ex-perimentation, our own Bill of Rights contains no restraints againstthe individual, none whatever. The only illustration of a restraintagainst the individual in our constitution was the ill-fated prohibi-tion experiment, which was repealed. But our Bill of Rights, supple-mented by our fourteen amendments, consists of restraints first againstthe federal government, this new government that was being createdby the thirteen states. Then as a result of the fourteenth amendment,these restraints have now been carried over and made applicable tothe states to restrain the states from state action.There is a lesson which we think the world can draw from thatsuccessful experiment in the development of a democracy, that whatwe ought to be concerned about is finding ways, by constitutions,statutes and ultimately by the force of world opinion . . . to findrestraints against governmental action, and we ought to steer clearas far as we can of extending the power of the government againstthe freedom of individuals. I urge you to think deeply about thatfundamental approach to this problem.It is an approach which our country has found to be the bestassurance of individual liberty. With all the experimentation wehave had in the economic and social field-and those of you whoare familiar with recent developments in our country realize that wehave adopted a great many experimental economic and social changes... our United States Supreme Court, our lower courts, our Congressand our State Legislatures have stood firmly against the extensionof any paternalistic ideas into the realm of freedom of expression andfreedom of thought. In that realm we have stood rigidly for completefreedom from governmental interference and upon that rock we con-tinue to stand.4His colleagues have written of Judge Halpern's work. Professor RichardHiscocks, for many years the United Kingdom expert in the Subcommission,says in his tribute:Philip Halpern's zest for work and his personal friendliness tohis colleagues were an example to all who are engaged in activitiesat the United Nations. I remember particularly well working withhim at the time of the anti-Semitic outbreaks during the winter of1959-1960. His humanity, his hatred of injustice, and his vigour inaction were then revealed at their best.54. U.N. Sub. on Prey. of Discrim. and Prot. of Min., 14th Sess. (E/CN.4/Sub.2/SR.371)(1962).5. Letter from Professor Richard Hiscocks to Rachel C. Nason, November 25, 1963.BUFFALO LAW REVIEWAnother who shared with Judge Halpern, Judge Saario of the SupremeCourt of Appeals in Finland, writes:As a member of the United Nations Subcommission on Pre-vention of Discrimination and Protection of Minorities I came toknow and respect Judge Halpern. For many years he was one of themost active members of the Subcommission. In this capacity he wasguided by the noblest principles of humanity. The dignity and theworth of the human person constituted for him one of the basicvalues of life, for the attainment of which he was always ready towork with unrelenting energy and consummate fortitude. All of hisactions were characterized both by precise legal thinking and by apositive approach to the many problems with which the Subcom-mission was confronted. 6Those of us in the Department of State who had the privilege of workingwith Judge Halpern can attest likewise to his unfailing good humor, hisgenerous wisdom and his determination for justice. His thorough scholarshipand clear insight made him an invaluable participtant in every discussion.Because he was both brilliant and articulate, he was able to stimulate freshthought on difficult issues and win support for new courses of action. Through-out his service, he furthered the human rights objectives of the United NationsCharter.*RACHEL CONRAD NAsON, Foreign Affairs OfficerUnited States Department of State6. Letter from Judge Saario to Rachel C. Nason, November 19, 1963.* The views expressed are those of the author, and do not necessarily represent thoseof the United States Government.

Judge Halpern As an Advocate of Human Rights

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Judge Halpern As an Advocate of Human Rights

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