I would be grateful if you would let us know, in writing. I will address that question in writing. [The information referred to follows:] RESPONSE TO SENATOR PELL'S QUERY RE WHICH STATE DEPARTMENT RESERVATION THE NAACP OBJECTED TO; SUBMITTED BY ALTHEA SIMMONS. As stated in our testimony, Article 5(e) (i) in the treaty on racial discrimination, the NAACP has reservations about the State Department's reservations to the treaty. We believe that the provisions should be self-executing so that the terms of the convention be considered as directly enforceable law on a par with congressional statutes. SUPPORT FOR CONCEPT OF CODETERMINATION Senator PELL. Mr. Kahn, in your testimony you state, "Implicit in this opinion is the belief, usually unvoiced, that the amelioration of economic distress excludes the participation of the distressed themselves." To carry that thought a step further, shouldn't that same logic mean that your organization strongly would be behind the idea of codetermination, which would be where the workers could express themselves on boards of directors and be represented there? Mr. KAHN. That is a controversial question. Senator PELL. I realize that. That is why I am asking it. Mr. KAHN. In the labor movement there are differences on that question. Some unions look favorably upon the European experiments in codetermination. Others, probably most, would criticize codetermination on the grounds that it does not provide the kind of independent organization for workers that you have suggested. In fact, the criticism of codetermination is precisely that it tends to co-opt trade union leadership and make it part of the corporate structure. In many Third World countries, it is the state which directs economic activity, that does the co-opting. The issue is whether codetermination strengthens or undermines autonomous, independent workers' institutions. Critics of codetermination contend that it compromises the independence of labor unions and leaders. This is an issue I think we will be discussing for years to come, especially in view of the Chrysler situation. Senator PELL. I strongly believe that codetermination is the hope and the wave of the future in labor-management relations. It certainly works, in general, abroad to provide a higher standard of living, better conditions for workers, and a more stable economy for the country and its citizens. REVERSAL FOR ABA SUPPORT OF GENOCIDE CONVENTION Mr. Moore, until recently the ABA had disapproved of the Genocide Convention. I realize that one is not now before us. But the ABA has now changed its mind and has endorsed its ratification as well as of the human rights covenants. I only regret that we do not have that convention before us. Because of its theoretically controversial nature, the administration is not pressing it as hard at this time as it is these four conventions. What brought about the welcome change in position of the ABA in this regard? Mr. MOORE. Mr. Chairman, as you have indicated, I am pleased to say that the American Bar Association also supports ratification of the Genocide Convention. Several years ago, I was honored to testify before this committee in support of that ratification. This support continues as a position of the American Bar Association. I think it certainly is fair to say that the endorsement which we have here of these four treaties is a recent endorsement of the American Bar Association. I would like to emphasize that at the present time, if one looks at the overall record of the American Bar Association on human rights treaties, it strongly is in support of these four treaties and the Genocide Convention. In 1966, it endorsed accession to the Supplemental Slavery Convention. It has taken a strong stand on the Helsinki Agreements and human rights provisions. I think it is fair to say at the present time that the American Bar Association feels strongly that these human rights treaties are treaties that the United States should adhere to at the earliest possible time. Mr. Chairman, I might say that you are well aware, as a member of this committee over the years, that there really are few opportunities in foreign policy in which we have the opportunity substantially to help the attainment of an important foreign policy goal at virtually no cost whatsoever. There is absolutely no reason that I can find that one ought not to adhere to these human rights treaties. There are a variety of reasons in achieving important United States human rights goals, however. The American Bar Association at this time is strongly on record in favor of that ratification at the earliest possible time. Senator PELL. Thank you. AFFECT ON AMERICAN DOMESTIC LAW In this connection, will adherence to the Civil and Political Covenant, or to any of the treaties, in fact, affect American domestic law one whit? Mr. MOORE. The Constitution, the State Federal system, and American law will not be altered or require any kind of immediate change as a result of the passage of these conventions. It is clear that with the understandings, reservations, and declarations that have been recommended, they are completely consistent with the U.S. Constitution. They also are non-self-executing, which really is the answer to your question, Mr. Chairman, and that is that any specific changes in laws that we would want to make as a nation. in implementing the obligations under these conventions would be made by domestic legislation which of course would come before the Congress and the Senate. Senator PELL. In this regard, perhaps you could respond in writing to the point I mentioned in connection with the Power Authority of New York v. the Federal Power Commission case, because this does take another position. It says that unless the reservation is an integral part of the treaty, which obviously is not because then it would be an amendment, then the judiciary would not be bound under the supremacy clause. Would you comment on that in writing? Mr. MOORE. I would be happy to do so, Mr. Chairman. I will submit something for the record on this case. Senator PELL. Thank you. It does seem to go in the other direction. Mr. MOORE. Let me also give you something in writing on the Inter-American Court on Human Rights. Senator PELL. I would be very glad to receive that as well. [The information referred to follows:] Specifically, your first question was, following the reasoning in Power Authority of New York v. Federal Power Commission, 247 F. 2d 538 (D.D.C. 1957), vacated as moot sub nom American Power Authority of New York, 355 U.S. 64 (1957), would the proposed reservations to the human rights treaties be legally binding. My response is that the reservations now proposed by the Administration, unlike the reservations in the Power Authority case, would, if attached by the Senate, constitute an integral part of the treaty obligations of the U.S. as these reservations do vary, limit and qualify the obligations of the U.S. to comply with the respective provisions of the treaties. According to the holding in Power Authority, that would render the reservations here proposed legally binding between the United States and other parties to the treaties as a matter of general international law. In Power Authority, the court found that a reservation to the treaty Concerning Use of the Waters of the Niagara River (Feb. 27, 1950 1 U.S.T. 694) was not an integral part of the treaty because it was "merely an expression of domestic policy," at 541, had no effect on U.S. international obligations under the treaty, and thus, had not become "law of the land” through the treaty making process. The court therefore refused to give binding effect to the reservation. The reservation in question in the Power Authority case provided that authorization for the redevelopment of the Niagara River as divided by the treaty between the U.S. and Cânada be reserved for future Acts of Congress. Likening reservations, or the Senate's conditions to consent, to contractual counter-offers which must be accepted, the court noted that such redevelopment on the U.S. side properly did not concern Canada, and that "the Canadian acceptance. was not so much an acceptance as a disclaimer of interest." at 541 The court found that the reservation in Power Authority "makes no change in the relationship between the [parties] under the treaty and has nothing at all to do with the rights or obligations of either party." at 541. The court thus held that the reservation was not an integral part of the treaty, but rather, "an expression of the Senate's desires" at 543, and denied the reservation legal effect. This issue was never considered by the Supreme Court. The reservations to be attached to the human rights treaties, as I have discussed in my statement, deal directly with the fulfillment of U.S. obligations under the treaties. There is no doubt that the proposed reservations meet the Power Authority test of directly affecting the obligations of the parties. It is my opinion that these reservations would be deemed an integral part of U.S. obligations under these treaties with respect to their international legal effect. As previously discussed, of course, domestic legal effect depends on whether a treaty provision is either viewed as self-executing or has been incorporated into domestic law by implementing legislation. The second question you asked related to the present site of the Inter-American Court of Human Rights. The court, which recently has been established following entry into force of the American Convention on Human Rights,1 is located in San Jose, Costa Rica which will be the permanent home of the court. Seven judges appointed May 23, 1979, sit on the court. The American judge nominated by Costa Rica is Thomas Buergenthal, formerly a professor at University of Texas Law School and now Dean-elect at American University Law School. During the last meeting of the OAS General Assembly in La Paz, Bolivia, the Statute of the Court was approved on October 30, 1979. At this time the court is in the process of establishing its own procedural rules. It has heard no case to date. REDRESS OF HUMAN RIGHTS VIOLATIONS FOR U.S. CITIZENS Senator PELL. Mr. Kahn, in your testimony you said you do not believe implementation of the treaties will afford U.S. Citizens significantly greater redress of human rights violations than is afforded by our own Bill of Rights. What advantages, in your view, then, would American citizens gain by ratification of these treaties? 1 American Convention on Human Rights, signed Nov. 22, 1969, entered in force July 18, 1978. O.A.S.T.S. No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II.23, doc. 21, rev. 2 (English 1975). Mr. KAHN. I said it would afford no significantly greater redress of human rights violations. It seems to me that the reason for supporting these treaties is they are an expression of the value system of this country. The provisions of the treaties are consonant with, and a projection of our democratic values. There ought not be any ambiguity about that in the mind of anybody in the world. The more firmly those values can be imbedded in international law and international values, the better off we will be as a democracy. I think it is important to win acceptance for these ideas in parts of the world where those ideas might not now be accepted. Senator PELL. Thank you. Ms. Simmons, did you wish to comment? MS. SIMMONS. Yes, Mr. Chairman. It is the non-self-executing section which is incorporated in articles 1 through 7, to which I made reference. We feel that this is an opportunity to buttress our own domestic laws. We have difficulty understanding why the State Department had reservations with reference thereto. They said if it was not non-self-executing, it would be considered as directly enforceable law on a par with congressional statute. We would support that. Senator PELL. Yes. My question to you is do you see the ratification of these treaties as in the same ball park or league as the Civil Rights Act and Voting Rights Act? MS. SIMMONS. Yes; I do. Senator PELL. As being almost equivalent in importance? MS. SIMMONS. Yes; that is right. This is why we so strongly support them. Senator PELL. Thank you. I am very glad indeed to have your views, Ms. Simmons, and to have those of Mr. Moore and Mr. Kahn. I thank you all very much indeed for being with us. Our next panel will consist of Mr. Oscar Schachter of the Columbia University School of Law; Mr. Louis Sohn of Harvard University School of Law; and Thomas Farer of Rutgers University School of Law. All will deal with the question of the obligations of the treaties. Would the next panel please come forward. Gentlemen, if you have any prepared statements, they will be inserted in full into the hearing record after your oral statement. I welcome you all here today. I am not sure in which order you would like to proceed. Would you please decide among yourselves. Mr. SCHACHTER. Mr. Chairman, may I please lead off? [Professor Schachter's biographical sketch follows:] BIOGRAPHICAL SKETCH OF PROFESSOR OSCAR SCHACHTER Oscar Schachter is a Professor of International Law at Columbia University Law School and School of International Affairs. He is also co-editor-in-chief of the American Journal of International Law. He has been the President of the American Society of International Law and is presently an honorary Vice-President. Born in New York City in 1915, and educated in that city, he received his law degree from Columbia University in 1939. His career has included private practice, government legal positions, State Department service and service in the United Nations. He was a legal advisor to the Secretary-General and Director of the U.N. Legal Division for 20 years. He also served as a director of the U.N. Institute for Training and Research for ten years. He has written extensively on international law and human rights, and has taken an active part in many international legal conferences. He is a member of the Institut de Droit International and has been a lecturer in universities in many parts of the world. While at the United Nations, he served as a legal advisor to organs concerned with human rights, including the drafting of the Covenants. Subsequently, he was the Chairman of the Committee on International Human Rights, of Association of the Bar of the City of New York and on the boards of several other nongovernmental organizations devoted to protection of human rights. STATEMENT OF OSCAR SCHACHTER, PROFESSOR, COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, N.Y. Mr. SCHACHTER. Mr. Chairman, I did not get a request for a written statement until a day before yesterday and did not bring one with me. Senator PELL. That is perfectly all right because, frankly, the written statement does not make anywhere near the impression on me that a brief, oral one does. Mr. SCHACHTER. I have been asked to speak in my personal capacity as a specialist in international law and I just want to say that I have had considerable experience in the preparatory stage of these covenants. I was legal adviser at the United Nations during the 20year period when the covenants on human rights were being prepared. In the course of that period, I had occasion to work closely with the drafting groups and to prepare legal opinions on proposals and draft texts. I have been invited to say a few words about the Covenant on Civil and Political Rights and some of the problems which have come up in that connection. The Covenant on Civil and Political Rights, I need hardly emphasize, is perhaps the central piece in the set of human rights treaties. It is the treaty which most closely reflects American constitutional rights and the classic individual rights of Western Europe. For this reason, it is especially striking that the United States has not yet become a party to this particular covenant. More than 50 states are now parties to the covenant. They include Communist and Third World countries. These countries, although in many cases nondemocratic, have made a significant step in accepting what we consider to be typically American rights, basic individual rights whereas we have not yet ratified the treaty that we had strongly espoused. As you know, this treaty outlaws discrimination, protects the right to life, proscribes against torture and degrading treatment, prohibits forced labor, has various provisions guaranteeing the liberty and security of persons, provides for fair trial and has classic provisions on equality before the law, freedom of expression, the right to assembly, the right to association, the right to periodic elections by universal suffrage and secret ballot. The treaty has implementation provisions for monitoring compliances. It provides for a Human Rights Committee elected by the parties, a committee of experts rather than states. This committee receives reports from the parties and puts questions to the parties. I have observed in some detail the work of the committee. I was greatly impressed by the searching questions put by the members of the committee. |