First: Although they are far from perfect, these treaties largely are the philosophical offspring of classical liberalism. For the most part, they set limits to governmental power over individuals' lives. They prescribe not what governments should do but what governments may not do. Second: The language of these treaties, indeed, the language of human rights as a whole, is particularly susceptible to semantic infiltration, that is, the redefinition of a term to serve the purposes of totalitarian doublespeak. Because of the high emotional appeal of human rights language and its operational function in international law, we cannot afford to abandon these concepts to the enemies of freedom. But this longterm semantic struggle will be waged in the implementation organs set up by these treaties, which argues for a responsible American voice. in these fora. Third: Only the establishment of an appropriate treaty obligation will make it clear that unilateral United States action on behalf of human rights does not violate the principle of nonintervention in domestic affairs. Finally, if the implementation bodies misconstrue these treaties, it is likely that such misconstructions will weaken, not augment, the parties' obligations. These reasons either do not apply to the Covenant on Economic, Social, and Cultural Rights, or are overridden by other considerations. I strongly oppose this treaty because of its philosophy, its content, and the danger of misconstruction. First: It is largely the historical product of the Marxist ideology espoused by the Soviet bloc, coupled with the non-Communist world's postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy. Second: Viewed in the best possible light, this is a big government treaty which, by virtue of the principle of progressive implementation, would commit the United States to ever-increasing levels of welfare, an ever-increasing governmental control of the economy, and everincreasing restrictions on individual initiative and freedom. Third: If this treaty is misconstrued, such misconstruction would most likely be in the direction of expanding the duties, mostly affirmative duties, of the states parties. Thank you, Mr. Chairman. [Professor Garibaldi's prepared statement follows:] PREPARED STATEMENT OF PROF. OSCAR GARIBALDI I am very grateful to the Committee for this opportunity to present my views about the ratification of the human rights treaties by the United States. In this testimony I shall express conditional support for the ratification of the American Convention and the Covenant on Civil and Political Rights, and outright opposition to the Covenant on Economic, Social and Cultural Rights. I wish to reserve my opinion about the Convention on the Elimination of All Forms of Racial Discrimination. These views are not unrelated to the implementation systems of each treaty, but they are not exclusively based on such systems. More precisely, I conditionally support the Covenant on Civil and Political Rights and the American Convention in spite of the fact that their implementation systems are not so strong as it is desirable; and I oppose the other Covenant even though its system of implementation is comparatively weak. I propose briefly to discuss, first, the implementation systems of the three treaties and, second, the reasons of substance which support the conclusions just stated. Since international law contains no implementation procedures of general applicability, the system adopted by a treaty-any treaty--is of great importance, particularly because it serves as a gauge of the seriousness with which the State Parties view their commitments and the probable effectiveness of the treaty as a whole. In the special case of the human rights treaties, the implementation procedures are even more consequential. The language in which the human rights treaties are drafted is extremely general, highly vague, and often ambiguous. The precise boundaries of the rights in question depend on indeterminate concepts, such as general welfare, ordre public, public interest, and the like. Therefore, the rights to be protected and, hence, the substantive obligations of the State Parties will be dictated, in large measure, not so much by the texts now before the Senate, but by the interpretations made by the implementing organs. Judging a system of implementation is like judging the strength of a fortress: it depends not only on how well the bastions are designed, but also on how well they are manned. This suggests that we should take a hard look not merely at the legal procedures established by the treaties, but especially at the likely composition of those bodies which will ultimately determine the scope of our international duties. In this double sense, the system of implementation set up by the European Convention on Human Rights-by far the best-represents a standard of excellence which we cannot ignore in evaluating the treaties before the Senate. Indeed, it is for these reasons that I have suggested that the United States negotiate the opening of the European Convention to accession by all Western democracies, or, as a second choice, conclude a similar treaty with those Western democracies which are not parties to the European system. The implementation procedures of the American Convention are those which, on paper, more closely resemble the European model. The Court and the Commission are organized as independent bodies of a judicial or quasi-judicial character. However, judging from the political history of many American countries and by the official ideologies of some of the newer ones, it is not a foregone conclusion that the future members of the Commission and the Court will embrace a philosophy of individual freedom, as their European counterparts have largely done. The system of implementation of the American Convention is therefore an open question: its worth will depend on the composition of the organs, their ability to insulate themselves from OAS politics, and their willingness to follow the European models. The implementation systems of the Covenants are considerably weaker than the European or inter-American systems. They basically consist in the submission of reports, to be considered by the Human Rights Committee or the ECOSOC, with the addition of a voluntary fact-finding and conciliation procedure in the Covenant on Civil and Political Rights. I am very skeptical about the effectiveness of these procedures, if by this we mean their ability to influence the States Parties' conduct. It is true that the Human Rights Committee has been unexpectedly assertive in its first two years of practice, but this is not so much a sign of effectiveness as a reflection on our extremely low expectations. In any event, these procedures will engender practices, which will significantly contribute to the interpretation of the treaties. In this sense, we should remember that the composition of the Human Rights Committee follows the ubiquitous principle of equitable distribution, which ensures the presence of members from totalitarian and authoritarian countries. As a result, the practice of the Committee already shows attempts to redefine the language of the Covenant on Civil and Political Rights, dilute its standards, and enforce it selectively. On the other hand, ECOSOC is, and will continue to be, dominated by Third World countries. Given the ideologies of the UN majority, it is quite likely that the ECOSOC will construe the other Covenant expansively, stress economic and social rights at the expense of civil and political rights, and perhaps find in Article 2(1) a treaty obligation to provide foreign aid, or to implement the new international economic order. Let me now summarize the reasons why I conditionally support two treaties and unconditionally oppose the third. I support the American Convention and the Covenant on Civil and Political Rights only if the U.S. makes a number of reservations not necessarily those proposed by the Administration-designed to make these treaties compatible with some basic principles of American law and foreign policy. (These reservations will be discussed in a longer statement to be submitted for the record). The reasons for my support of these two treaties are the following. First, although they are far from perfect, these treaties are largely the philosophical · offspring of classical liberalism; for the most part, they set limits to governmental power over individuals' lives, they prescribe not what governments should do, but what governments may not do. Second, the language of these treaties—indeed the language of human rights as a whole is particularly susceptible to semantic, infiltration, that is, the redefinition of a term to serve the purposes of totalitarian doublespeak. Because of the high emotional appeal of human rights language and its operational function in international law, we cannot afford to abandon these concepts to the enemies of freedom. But this long-term semantic struggle will be waged in the implementation organs set up by these treaties, which argues for a responsible American voice in these fora. Third, only the establishment of an appropriate treaty obligation will make it clear that unilateral U.S. action on behalf of human rights does not violate the principle of non-intervention in the domestic affairs of the target country. Finally, if the implementation bodies misconstrue these treaties, it is likely that such misconstructions will weaken, not augment, the Parties' obligations. These reasons either to not apply to the Covenant on Economic, Social and Cultural Rights or are overridden by other considerations. I strongly oppose this treaty, because of its philosophy, its content, and the danger of misconstruction. First, it is largely the historical product of the Marxist ideology espoused by the Soviet bloc, coupled with the non-communist world's postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy. Second, viewed in the best possible light, this is a big-government treaty, which-by virtue of the principle of progressive implementation-would commit the United States to ever increasing levels of welfare, an ever increasing governmental control of the eccnomy, and ever increasing restrictions on individual initiative and freedom. Third, if this treaty is misconstrued, it will most likely be in the direction of expanding the duties-mostly affirmative duties of the States Parties. To conclude, I wish to address myself to some arguments often heard in support of this Covenant. First, it is said that ratifying this treaty is cost-free, because it is a mere statement of goals. This is incorrect. The Covenant does contain legal obligations: a basic obligation to take steps towards the progressive realization of the rights in question, as well as additional obligations which must be implemented in full and at once. Further, in many cases the steps to be takenthe means to achieve the goals-are stated in great detail. Second, it is said that U.S. legislation already incorporates many of the principles laid down by the treaty. This may be true, but is beside the point. For in the present situation, we may freely amend such legislation, change our social goals, or reduce the amount of social services, if they prove too costly, or if they are better provided by private institutions. On the contrary, under the Covenant's principle of progressive implementation, we could not make such changes without violating the treaty; we would be forever pushed along a road which allows no return. Finally, it is said that whether or not this Covenant is ideologically contrary to the American tradition, we should ratify it, if only to show the Third World that we are sensitive to their political concerns. But this is sheer ideological appeasement, neither more justifiable nor more likely to advance the national interest than other forms of appeasement with which we are all too painfully familiar. Senator ZORINSKY. Thank you, Mr. Garibaldi. STATEMENT OF RICHARD B. LILLICH, PROFESSOR OF LAW, UNI- Mr. LILLICH. Thank you, Mr. Chairman. It is my understanding that our assignment today is to discuss the procedures under the conventions. In 7 minutes I will try to highlight them and perhaps we can come back to them during the discussion. I have three basic points to make. First, these procedures are relatively weak, some might even say ineffective, but, nevertheless, it is up to the United States to get in and participate in the development not only of the remedies but of the substantive law under all of the conventions that are being considered. Second, I am going to outline, as time does not allow me to do more than that, the basic procedures under at least three of the four conventions. I will not discuss the Economic, Social, and Cultural Convention for reasons which perhaps I will allude to later on. Last, I want to stress the fact that these conventions, with the declarations the President has suggested to all four of them, will have no impact or relatively little impact on U.S. domestic law. I think this is terribly unfortunate, since domestic impact is part of the enforcement mechanism that you should be considering here today. First of all, my basic thesis in general, to paraphrase Mr. Justice Holmes, is that rights without remedies are no rights at all. Therefore, in taking a look at the substantive rights guaranteed by any legal document, we have to examine the remedies quite carefully. The remedies under these four treaties are not particularly strong. Indeed, the United States is trying to weaken them with some of the suggestions that have been made in the President's message. Yet, nevertheless, they are remedies. They are remedies of which the United States should take advantage. They are remedies which in many instances will be utilized against the United States, whether we take advantage of them or not. For this reason it seems to me it is up to us to get in and participate in this game and develop the substantive law along with utilizing the procedures in these four treaties to develop and perpetuate our foreign policy interests. The second point is, what are the basic procedures. Well, they are three in nature: first, reporting; second, state-to-state complaints; third, the right of individual petition. The Civil and Political Covenant has a provision in article 40 allowing, indeed requiring, reports to the Human Rights Committee that is established under that particular covenant. The Racial Discrimination Convention has a reporting procedure under article 9 which requires periodic reports to the Racial Discrimination Committee. The American Convention, somewhat different than the other two, has a limited reporting procedure under article 42, but it has a potential under article 41(d) for a more thorough reporting procedure that I would hope the Human Rights Commission would develop. Under all these reporting procedures, which time does not permit going into in any detail, it is fair to say that ultimately there is no real clout. Particular committees eventually will issue reports. They may well make recommendations. They may well condemn states. But the value here indeed is publicity, and perhaps no more than publicity. Perhaps that is all we should seek at this particular stage in the development of the internationl legal order. The second type of procedure is state-to-state complaints. They are provided for in one way or another in all these treaties. First of all, regarding article 41 of the Civil and Political Covenant, the President has said that he will opt for the discretionary judgment that he has and declare that the United States will allow complaints to be brought against it and will take advantage of the procedure to bring complaints against other states. There is an affirmative action that has to be taken here. The President has indicated that he will do it and that in approving this covenant you will be authorizing him to do it. Under the Racial Discrimination Convention there is a built-in state-to-state complaint. No authorization is necessary; no declaration from the President is required. Under the American Convention, the President once again has said that he will take advantage of the optional procedure under article 45 and that if you approve this convention he will take advantage of that and will commit the United States both to bringing and receiving state-to-state complaints. Once again, what happens at the end of the procedure, which we do not have time to go into in any great detail today? Once again, there is something like a report. There may be a recommendation; but, as Secretary Christopher said, there are no legal, binding recommendations or awards under any of these particular procedures. Last and here I will be most critical-is the right of individual petition which everyone in the international human rights area agrees is the most effective device for transmitting information and generating action. First of all, there is no individual petition right in the Civil and Political Covenant. As you know, there is an Optional Protocol, and the President has not seen fit to submit it to the Senate along with these treaties at this particular time. I think that is highly unfortunate. Second, under the Racial Discrimination Convention, the President has an option to declare under article 14 that the committee can receive individual complaints, but he has not asked for your approval at this time. Actually, he does not really require your approval, although he apparently is willing to defer to you in this regard. Thus, there will be no right of individual petition if, indeed, the convention is ratified as now proposed. Under the American Convention, rather ironically, there is a builtin provision in article 41, and therefore the right of individual complaint exists under it, and there will be no need for any subsequent action by the Senate. It seems highly ironic in view of the United Nation_petition under Resolution 1503 and the inherent right under the Inter-American system to file petitions that such a right is not contemplated by the United States under the other treaties. I would strongly suggest that when these treaties are ratified, they be done so in such a way that, across the board, there will exist the right of individual petition. I see that the red light is on. I do not have time to develop my third point on the lack of impact these conventions, if ratified as proposed, will have in the United States. I will defer my remarks to the question and answer period. Thank you. Senator ZORINSKY. Thank you, Mr. Lillich. Professor Buergenthal, you are in the next seat. We will be happy to hear from you now. STATEMENT OF THOMAS BUERGENTHAL, PROFESSOR, UNIVERSITY OF TEXAS LAW SCHOOL, AUSTIN, TEX. Mr. BUERGENTHAL. Thank you, Mr. Chairman. I would like to thank you, first of all, for allowing me to appear before your committee on such notice and want to say that I am profoundly honored and grateful to have this opportunity. Although it is |