could supersede the Constitution. As I demonstrated, the historical record is conclusive that such allegations are nonsense: First, treaties can only be valid when consistent with the Constitution; second, treaties can never supersede the Constitution; and, third, in cases where there is an inconsistency or contradiction between a treaty and a law adopted by Congress at a later time, the act of Congress prevails and the treaty which it contradicts is null and void. Today, I would like to turn to another, perhaps more theoretical, aspect of treatymaking: That is, the contention that treaties are limited to matters which cannot be dealt with by the States. The argument has been cast many ways but it often runs like this: Genocide, in its most basic and brutal form, in murder on a large scale and the States are competent to adopt laws dealing with murder; therefore, crimes such as genocide go beyond the treaty power under the Constitution. Proponents of this view are fond of citing Thomas Jefferson's famous four conditions for treatymaking from his "Manual of Parliamentary Procedure" as authority for this interpretation. Mr. President, far from being accepted constitutional practice, a limited interpretation of treaty powers is clearly opposite to the historical record. I intend to show that: First, this limited view of treaty powers was never fully accepted by our Founding Fathers and Jefferson recognized that; second, the Supreme Court has decisively rejected a limited interpretation of proper subjects for treaties; and, third, contemporary practice has supported the Court's interpretation. THE MISSING WORDS OF JEFFERSON Mr. President, it is quite clear that Thomas Jefferson favored a very limited interpretation of treaty powers but in citing selectively from his "Manual of Parliamentary Procedure," proponents of his view overlook two key points: Jefferson recognized that his interpretation was not in a clear majority among the Founding Fathers and, second, that a comparison between the Articles of Confederation and the Constitution make it clear that the omission of specific restrictions in the Constitution on treaty powers is of particular significance. The initial lines of Jefferson's listing of conditions for treaty-making are important: "By the Constitution of the United States, this department of legislation is confined to two branches only of the ordinary legislature-the President originating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution nor are we entirely agreed among ourselves. . . ." That final line, seldom quoted, is important on two counts. First, Jefferson explicitly recognized that his view was not universally held by the other Founding Fathers. Second, the fact that the Constitution did not spell out in detail any limitations on treaty power is important when contrasted with the restraints imposed upon treaty making powers by the Articles of Confederation, the predecessor to our Constitution. That document prohibited treaties which would restrain state legislatures from: "Imposing such posts and duties on foreignors as their own people are subject to, or from prohibiting the exportation or importation of any species or commodities whatsoever." In this light, the omission of specific prohibitions on subjects for treatymaking takes on additional significance. THE SUPREME COURT'S INTERPRETATION The Supreme Court's record also clearly reinforces this broad interpretation of the proper subjects for treaties. From the beginning of the Republic, the Court had tended to uphold treaty makers in any challenge regarding the propriety of subject matter. While most of these decisions did not specifically address the question of subject matter, Justices often outlined their views in dicta. One of the cases to which I referred yesterday, contained just that type of pronouncement. Mr. Justice Field in Geofrey against Riggs (1890) noted regarding treaty powers that: "It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States, or a cession of the portion of the latter, without its consent.. t with these exceptions, it is not perceived that there is any limit to the ions which can be adjusted." e second case that I want to cite is perhaps the most celebrated and anaconstitutional law case, Missouri against Holland. this case, decided in 1920, the Court was reviewing a challenge to the e decision, rendered by Mr. Justice Holmes, had an enormous impact. It con- THE CONTEMPORARY PERIOD terestingly, one who did question this decision, Senator Bricker, provided handed support for Holmes' view. In an unsuccessful effort between 1952 and to "overrule" the Missouri case, Senator Bricker led a fight for a constitu1 amendment. The very fact that Bricker pursued a constitutional amendI strategy suggests an awareness of the lack of constitutional restraints treaty powers. The Missouri case, then, was not a case of misinterpretaby the Court to be reversed at a later date but rather a correct interpretawith which he disagreed, and sought to remedy constitutionally. Otherwise, rof. Louis Henkin notes, his struggle would have been "largely unnecessary, ly as well as politically." e contemporary record provides more straightforward endorsement of this . The Senate has given its advice and consent to a series of treaties, runthe gamut from political rights of women to protection of whales, safeds against hijacking and political terrorism to protection of the seas against pills. hile some of these treaties have been challenged on political grounds, the ority of the United States to enter into these agreements has been virtually estioned-further proof that the broad scope of treaty powers is unquesed today. IN CONCLUSION r. President, it is clear that the treaty powers of the Constitution have fully recognized, and exercised, as unfettered since the definite Missouri he only overarching limitations, and I discussed them yesterday, are the re- [r. President, there is no constitutional impediment to ratification of this [From the Congressional Record, Oct. 28, 1981] THE MENTAL HARM CLAUSE OF THE GENOCIDE CONVENTION [r. PROXMIRE. Mr. President, today I should like to examine the interpretaà of the mental harm clause in article II of the Genocide Convention. The Liberty Lobby's "white paper on the Genocide Convention" alleges that s clause will: nhibit law enforcement agencies from taking action against any identifiable up; ubject this Nation to prosecution before the world court for our racial segreion policies prior to 1954; and Curtail our freedom of speech by inhibiting authors who fear they may int mental harm on a group of readers. Mr. President, these allegations are completely false and I intend to prove it point by point. But first, it is important to look at the exact wording dealing with mental harm in the Genocide Convention. Article II states: "In the present Convention, genocide means any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group." Subsection (b) defines one of the prohibited acts as "causing serious bodily or mental harm to members of the group." Mr. President, to the extent that there was ever any ambiguity regarding this phrase and I do not believe it is vague at all-that question was resolved by the understanding recommended by the Senate Foreign Relations Committee defining serious mental harm as "permanent impairment of mental faculties." According to former Ambassador Charles Yost: "This standard is rigid enough to discourage frivolous allegations of genocide through mental harm." But the Liberty Lobby thinks differently. So let us examine each of their arguments in turn. Their first point-that law officers might be inhibited to take action against any identifiable group for fear of being charged with genocide is absurd. Why? The Liberty Lobby is ignoring the basic definition of genocide contained in the treaty. What does it say? To be convicted of genocide, an individual must commit that act with the intent to destroy-let me repeat that: Intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Under our Constitution, laws could not be enacted with intent to destroy groups within our society. Therefore, there is no chance and I mean none-that routine law enforcement could ever meet this treaty's definition of genocide. Their second argument—a fear that racial segregation policies prior to 1954 might be held as genocide by a world court-is impossible. This treaty is simply not retroactive. Not in any way. Finally, the argument that freedom of speech might be curtailed as authors worried about inflicting mental harm on groups of their readers is also ridiculous. The understanding recommended by the Foreign Relations Committee classifies mental harm as having inflicted permanent impairment of mental faculties for a substantial portion of the group. In addition, as I have noted earlier, an individual's intent to commit genocide would have to be clearly established. Mr. President, even the American Civil Liberties Union, which places utmost priority on preservation of constitutional guarantees, does not draw this spurious connection between the mental harm clause and loss of freedom of speech. They stand firmly behind this treaty, convinced that our constitutional freedoms remain intact. In short, these allegations are unfounded on every count. Mr. President, with each passing year, the support for the Genocide Convention continues to grow. As the American Bar Association recognized in 1976, the objections raised in opposition to this convention have simply not withstood the test of time. Mr. President, the American Bar Association was courageous enough to admit their mistake in opposing the convention. I hope that, someday, Liberty Lobby will display that same courage. Mr. President, I urge my colleagues to join with me in seeking ratification of the Genocide Convention. [From the Congressional Record, Oct. 30, 1981] THE GENOCIDE CONVENTION WOULD NOT ENDANGER AMERICAN SERVICEMEN IN ANY WAY Mr. PROXMIRE. Mr. President, consider the allegations made in the Liberty Lobby's "White Paper on the Genocide Convention": that if this treaty were ratified our officers and enlisted men are certain to be charged with genocide in the fulfillment of their duties. Mr. President, here we have a classic example of Liberty Lobby's style of argumentation. They make this preposterous allegation-without any substantiation whatsoever. There is not one shred of evidence in this report-not oneto back up this statement. Let us look at the facts, Mr. President. t, what does our own Defense Department have to say about the Genocide mtion? After all, I know of no other agency of the U.S. Government which -e concerned about the impact of any treaty upon our servicemen. what do they say? Ratification of the Genocide Convention would be a ive step in the national interest of our country." A positive step in our al interest, Mr. President. t view is shared not only by the level of the Secretary of Defense but each very branch of our Armed Forces and I ask unanimous consent that letters each of the branches of our Armed Forces to the American Bar Association rinted in the Record at the conclusion of my remarks. ACTING PRESIDENT pro tempore. Without objection, it is so ordered. e exhibit 1.) PROXMIRE. Second, the State Department shares the views of the Defense tment that this treaty poses no threat to our servicemen. As David Abshire, cant Secretary of State, pointed out in the 1976 hearings before the Foreign ions Committee, the Genocide Convention "does not alter the rules of waror the obligations of parties to the Geneva Conventions on the treatment of hers of war." Nor does it "apply to civil wars." rd, as George Aldrich, the deputy legal adviser for the State Department g the Nixon administration, made clear during the 1970 hearings: The d States has always reserved for itself exclusive jurisdiction over the actions r servicemen during time of war. is is a further safeguard, Mr. President, which would prevent spurious ces of genocide. urth, and here is a point of commonsense, Mr. President, that cannot be asized enough: This treaty requires proof of intent. ent to eliminate in whole or in part a national group. Intent to eliminate in e or in part a racial group. Intent to eliminate in whole or in part a religious . Intent to eliminate in whole or in part an ethnic group. “Intent” is the key . Mr. President. d as Bruno Bitker, a prominent member of the American Bar Association one of the most eloquent experts on this treaty, points out hostile actions in at situations do not in and of themselves contain this necessary element of -nt." conclusion, Mr. President, the Liberty Lobby throughout its "White Paper he Genocide Convention" has consistently strayed from the facts. Instead it relied on innuendo and unfounded allegations to make its points. Their oric has only served to underscore the weakness of their case. r. President, as I have pointed out, time and again, this treaty merely seeks xtend on an international level a fundamental principle long recognized and ished by all Americans: the right of all groups, ethnic, racial, religious, and onal to exist. The precious rights to live. is treaty is perfectly consistent with our Constitution and, as our own ense Department has pointed out, it is in our national interest. r. President, we have waited far too long to ratify this important convention. us not wait any longer. RRY A. INMAN, Esq., "EXHIBIT I "GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, legate, Section of International Law, to House of Delegates, American Bar Association, Washington, D.C. DEAR MR. INMAN: I appreciate your calling to my attention the Section's Restion on the Genocide Convention which will be presented to the House of egates at its Midyear Meeting February 16 and 17. The Department of Defense fully supports the position of the Administration t the United States should accede to the Genocide Convention with the Underndings and Declaration which were approved by the Senate Committee on eign Relations in S. Exec. Report No. 93–5, 93rd Congress, 1st Sess., (1973). Inasmuch as the Section's Resolution is in complete accord with that position, m pleased to endorse it by this letter. I share the Section's conclusion that eding to the Convention would be a 'positive step in the national interest of country.' "RICHARD A. WILEY." "HARRY A. INMAN, ESQ., "DEPARTMENT OF THE Navy, OFFICE OF THE JUDGE ADVOCATE GENERAL, "Washington, D.C., February 13, 1976. "Delegate, Section of International Law, to House of Delegates, American Bar Association, Washington, D.C. "DEAR MR. INMAN: Your letter of February 4, 1976, to Mr. Waldemar Solf concerning the Genocide Convention has been brought to my attention. I am also aware of the views expressed by Mr. Richard A. Wiley, General Counsel, Office of the Secretary of Defense, in his letter on this subject of February 9, 1976. "I share the views expressed by Mr. Wiley and endorse the resolution of the American Bar Association's Section on International Law concerning the Genocide Convention. "I support accession to the Convention subject to the Understandings and Declaration approved by the Committee on Foreign Relations of the United States Senate. "Sincerely, "WILLIAM O. MILLER, "Rear Admiral, JAGC, U.S. Navy, "HARRY A. INMAN, ESQ., "DEPARTMENT OF THE ARMY, OFFICE OF THE JUDGE ADVOCATE GENERAL, "Delegate, Section of International Law, to House of Delegates, American Bar Association, Washington, D.C. "DEAR MR. INMAN: Mr. Solf has called my attention to your letter of 4 February 1976 requesting the support of the service Judge Advocates General for the resolution of the ABA Section on International Law concerning the Genocide Convention. "I am pleased to concur in the views expressed by Mr. Richard A. Wiley, General Counsel, Office of the Secretary of Defense, in his letter of 9 February to you. I endorse the Section's resolution and fully support accession to the Genocide Convention with the Understandings the Declaration which were approved by the Senate Committee on Foreign Relations. "Sincerely, "HARRY A. INMAN, ESQ., "WILTON B. PERSONS, Jr., "Major General, U.S.A. "The Judge Advocate General." "DEPARTMENT OF THE AIR FORCE, "Delegate, Section of International Law, to House of Delegates, American Bar Association, Washington, D.C. "DEAR MR. INMAN: At the request of Air Force members of the ABA Section of International Law, I have reviewed the Section's recommendation and report concerning the Genocide Convention. "I believe reluctance by the United States to become a party to the treaty may be subject to misinterpretation in other countries. The laws of the United States under which the U.S. Air Force operates are consistent with the principles of the Convention. Accordingly, I agree with the view of the Defense Department's General Counsel that accession to the Genocide Convention, with the understandings and Declarations approved by the Senate Committee on Foreign Relations, would be a positive step. "Sincerely, "HAROLD R. VAGUE, "The Judge Advocate General, U.S. Air Force." |