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[Annex 3]

(From the Congressional Record, Mar. 16, 1976)

DEFENSE DEPARTMENT ENDORSES GENOCIDE CONVENTION Mr. PROXMIRE. Mr. President, I am extremely pleased to report yet another series of endorsements of ratification of the Genocide Convention. Not only has the General Counsel of the Department of Defense endorsed the treaty but so has the Judge Advocate General for the Army, Air Force, and Navy in separate opinions. It is especially significant that the Defense Department has recognized that the Genocide Convention poses absolutely no threat to the United States, and that ratification would be a “positive step in the national interest of our country.” This endorsement should allay the concerns of those who mistakenly argue that the coni ention would weanen our international standing.

The American Bar Association last month took up the issue of the Genocide Convention, which the ABA had consistently refused to support in past years. The ABA quite properly wanted to find out where the Defense Department stood on the Genocide Convention before making its own decision. The Defense Department unequivocally expressed their support of the Genocide Convention as subject to the understandings and declaration approved by the Committee on Foreign Relations of the Senate. Subsequent to the Defense Department's recommendation for Senate ratification, the ABA House of Delegates overwhelmingly voted to approve the Genocide Convention.

Virtually every major organization in the United States has expressed its support of the Genocide Convention. The recent announcements by the ABA and the Department of Defense should serve to convince those who have remained skeptical of the Genocide Convention that we should ratify the treaty, I sincerely hope that we can expedite the ratification of the convention so that we can join the world community in its admirable effort to combat genocide.

I ask unanimous consent that the letters from Richard A. Wiley, General Counsel of the Department of Defense; William 0. Miller, Deputy Judge Advocate General of the Navy; Wilton B. Persons, Jr., and Harold R. Vague, Judge Advocate General of the Army and Air Force, respectively, endorsing the Genocide Convention be printed in the Record.

There being no objection, the letters were ordered to be printed in the Record, as follows:

“GENERAL COUNSEL OF
THE DEPARTMENT OF DEFENSE,

"Washington, D.C., February 9, 1976. "HARRY A. INMAN, Esq., "Delegate, 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 Resolution on the Genocide Convention which will be presented to the House of Delegates at its Midyear Meeting February 16 and 17.

"The Department of Defense fully supports the position of the Administration that the United States should accede to the Genocide Convention with the Understandings and Declaration which were approved by the Senate Committee on Foreign 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, I am pleased to endorse it by this letter. I share the Section's conclusion that acceding to the Convention would be a “positive step in the national interest of our country.”

"RICHARD A. WILEY."

"DEPARTMENT OF THE NAVY,

OFFICE OF THE
JUDGE ADVOCATE GENERAL,

"Washington, D.C., February 13, 1976. HARRY A. INMAN, Esq., 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.

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"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, Deputy Judge Advocate General.

"DEPARTMENT OF THE ARMY, OFFICE OF THIE JUDGE ADVOCATE GENERAL,

Washington, D.C., February 11, 1976. “HARRY A. INMAN, Esq., Delegate, Section of International Law, To House of Delegates, American Bar

Association, TVashington, 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 and Declaration which were approved by the Senate Committee on Foreign Relations. "Sincerely,

“WILTON B. PERSONS, Jr.,

"Major General, USA, "The Judge Advocate General."

"DEPARTMENT OF THE AIR FORCE,

Washington, D.C., February 13, 1976. “HARRY A. INMAN, Esq., 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,

Major General,
"The Judge Advocate General,

U.S. Air Force."

[Annex 4]

MILLIONS OF AMERICANS SUPPORT THE GENOCIDE CONVENTION

The following is a list of 52 labor, civic, religious and nationality groups which represent millions of Americans that have endorsed the Genocide Convention.

Amalgamated Clothing and Textile Workers Union, AFL-CIO; American Baptist Convention; American Civil Liberties Union; American Ethical Union; American Federation of State, County and Municipal Employees, AFL-CIO; American Federation of Teachers, AFL-CIO; American Friends Service Committee; American Humanist Association; American Jewish Committee; Ameri

can

Jewish Congress; American Roumanian National Committee; American Veterans Committee; Americans for Democratic Action; Anti-Defamation League of B'nai B'rith; Baha'i National Spiritual Assembly of the U.S.A.

B'nai B'rith; B'nai B'rith Women; Emma Lazarus Federation of Jewish Women's Clubs; Episcopal Church; Friends Committee on National Legislation; Hadassah, The Women's Zionist Organization of America; Industrial Union Department, AFL-CIO; International Ladies Garment Workers Union, AFL-CIO; International Rescue Committee; International Union of Electrical Workers, AFL-CIO; Jewish Labor Committee; Jewish War Veterans; Labor Zionist Alliance; League for Industrial. Democracy; Methodist Church, General Board of Christian Social Concerns; National Association of Negro Business and Professional Women's Clubs; National Association for the Advancement of Colored People; National Board, YWCA; National Catholic Conference for Interracial Justice; National Conference of Christians and Jews; National Council of Jewish Women; National Jewish Community Relations Advisory Council; National Panel of American Women; Retail, Wholesale and Department Store Union, AFL-CIO; Ukranian Congress Committee of America.

Ukrainian National Association; Union of American Hebrew Congregation; Union of Orthodox Jewish Congregations of America; Unitarian Universalist Association; United Automobile Workers of America; United Church of Christ; United Synogogue of America ; Women United for the United Nations; Women's International League for Peace and Freedom; Workers Defense League; Workmen's Circle; World Federalists, U.S.A.; and World Jewish Congress, American Section.

[Annex 5]

[From the University of Pennsylvania Law Review]

THE CONSTITUTION, TREATIES, AND INTERNATIONAL HUMAN RIGHTS

(Louis Henkin) * By a coincidence of which, no doubt, few were aware, the year 1968, the centenary of the fourteenth amendment to the American Constitution, was designated by the United Nations General Assembly as “International Human Rights Year."

." 1 On such ceremonial occasions, coincidence alone might warrant the exploration of a possible relationship between the occasions celebrated. It is in fact not difficult to find significant links between human rights as enjoyed under the fourteenth amendment and other provisions of the American Constitution, and human rights as they exist in other countries. The actions of the United States have affected human rights in other nations, as well as international efforts to improve the observance of such rights.

While influence can never be measured and often cannot be proved, one can assert with confidence that the United States has inspired ideas, movements, laws, and events which have promoted human rights in other countries. The American Constitution, particularly the Bill of Rights and the fourteenth amendment, have left their traces in a hundred constitutions and in thousands of laws, charters and manifestos.American concern about human rights has been exported by American foreign policy and diplomacy, in protests on the mistreatment of minorities by Czars and Hitlers; in peace treaties requiring the vanquished to respect the rights of minorities (after World War I), or of all persons (after World War II); in the growing protections of customary international law assuring justice to aliens, in burgeoning doctrines assuring basic rights to all; in the human rights provisions of the UN Charter; ' in the UN Declaration of Human Rights ; * in covenants drafted under the auspices of the UN; and in conventions and institutions of European and other regional bodies.

Influence, of course, has not been a one-way street. Many of the rights protected by the Constitution owe much to French and British antecedents. More recently, the ideas and experiences of others have helped bring our eighteenthcentury Constitution up to the needs of a new age. Our constitutional fathers were concerned with the protection of “natural” individual freedoms from too much governmental interference; only after a world depression did Congress begin to provide “rights of welfare," and it was not easy to persuade the Supreme Court of the constitutionality of such legislation. New rights of equality and new conceptions of freedom required constitutional reinterpretation and bold legislation. The UN Charter and the UN Declaration of Human Rights have been invoked in American courts to supplement rights protected by the Constitution. Political forces—the existence of United Nations, the competition of Communist ideology, the influence of new nations-surely have had an impact on the actual state of human rights in the United States, and particularly on the rights of the Negro.

*Lines Professor of Law, Columbia University. B.A. 1937, L.H.D. 1963, Yeshiva University ; LL.B. 1940, Harvard University. Member, New York Bar.

i G.A. Res. 1961, 18 U.N. GAOR Supp. 15, at 43, U.N. Doc. A/5515 (1963).

2 Some constitutions were drafted under direct American authority or influence; for example, those of Liberia, the Philippines, the l'ederal Republic of Germany and postwar Japan. For similarities between the American Constitution and others, see synoptic tables in 3 A. Peaslee, Constitutions of Nations 556–63 (1950).

3 U.N. Charter art. 1, para. 3, art. 13, para. 1b, arts. 55–72. 4 G.A. Res. 217, U.N. Doc. A/810 at 71-77 (1948).

In one respect, however, the United States has resisted the influence of others within our borders and has refused to cooperate in promoting rights elsewhere. Although the American government has insisted that observance of human rights is indispensable to international peace and security; although our own observance of human rights is, in most respects, as high as any in the world; although the United States has obligated itself to cooperate with other nations and international organizations to promote human rights; o although American representatives have played principal roles in drafting declarations and covenants advancing freedom and justice—the United States has generally refused to adhere to international efforts to establish common minimum standards for individual human rights. The Genocide Convention has vainly sought the consent of the United States Senate since 1949." The United States did not sign the convention, which it helped draft and promote, on the status of refugees." Secretary of State Dulles officially renounced any intention to adhere to conventions on human rights which the UN was drafting.12 When President Kennedy abandoned the Dulles policy and sent three minor conventions to the Senate,13 the Foreign Relations Committee failed to recommend consent to two of them.1

The last decade even saw a determined effort, led by Senator Bricker, to amend the United States Constitution in ways principally designed to make American adherence to human rights covenants impossible.15 That effort failed, but lawyers now are endeavoring to use the Constitution as it is to reach the same end. 16 Amendment, they maintain, is not necessary to prohibit American participation in human rights covenants: the Constitution, they say, already forbids the use of the treaty power for such purposes since the human rights of American inhabitants are essentially a matter of domestic, not international, concern.

I shall not consider here whether it is in the interest of the United States to adhere to any particular human rights agreement, or even whether, in principle, the United States should join in cooperative efforts to promote human rights through conventions setting uniform minimum standards of respect for the rights of a nation's own inhabitants. My concern is exclusively with the constitutional objections that are raised against American participation in international

5 Compare United States v. Butler, 297 U.S. 1 (1936), with Steward Mach. Co. v. Davis, 301 U.S. 048 (1937).

8 See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Griffin v. Illinois, 351 U.S. 12 (1956).

? Civil Rights Act of 1964, 78 Stat. 241-68 (1964), 28 U.S.C. § 1447(a) (1964), 42 U.S.C. 88 1971, 1977a-1975d, 2000-2000h-6 (1964).

8 Compare Oyama v. California, 332 U.S. 633, 649–50 (concurring opinion), 673 (concurring opinion) (1948), with Hurd v. Hodge, 162 F.2d 233, 245–46 (D.C. Cir. 1947), aff'd, 334 U.S. 24, 34–35 (1948), and Sei Fujii v. State, 217 P.20 481, 486–88 (Cal. Dist. Ct. App. 1950), aff'd on other grounds, 38 Cal. 28 718, 242 P.2d 617 (1952).

9 U.N. Charter arts. 55-56. 10 Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 278, entered into force Jan. 12, 1951. President Truman transmitted the Convention to the Senate for its consent on June 16, 1949, see 95 Cong. Rec. 7825 (1949).

11 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (1954). 12 32 Dep't of State Bull. 820, 822 (1955) ; see note 69 infra and accompanying text. 13 See note 66 infra. 14 109 Cong. Rec. 13046 (1963) ; 113 Cong. Rec. 15750–51 (daily ed. Nov. 2, 1967).

15 The principal version of the Bricker Amendment, prepared by the American Bar Association, is contained in Hearings on S.J. Res. 1 and S.J. Res. 43 Before u Subcomm. of the Senate Comm. on the Judiciary, 83d Cong., 1st Sess. at 35-36 (1953).

16 American Bar Association, Report of the Standing Committee on Peace and Law Through United Naiions: Human Rights Conventions and Recommendations, 1 Int'l Law. 600, 607 (1967) ; see Hearings on Human Rights Conventions Before a Subcomm. of the Senate Comm. on Foreign Relations, 90th Cong., 1st Sess., passim (1967).

17 American Bar Association, Report of the Standing Committee on Peace and Law Through United Nations: Human Rights Conventions and Recommendations, 1 Int'l Law. 600, 601 (1967).

17

treaties on human rights.18 I am convinced that the argument that the United States is without power under the Constitution to adhere to such treaties has no basis whatever-in the language of the Constitution, in its travaux préparatoires, in the institutions it established, in its principles of federalism or of separation of powers, in almost two centuries of constitutional history, or in any other consideration relevant to constitutional interpretation.

I

19

Article II, section 2 of the Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” The Constitution does not define treaties; the framers knew what treaties were and, no doubt, did not see any need to define what was well known in international law and practice. Nor does the Constitution state that there are matters which cannot properly be the subject of a treaty, or that there are other limitations on treaties and the treaty power.

Still, while no treaty or treaty provision has ever been declared unconstitutional, it is settled that treaties are subject to constitutional limitations. There was once a myth that his was not so. The view that treaties are not subject to constitutional limitations found support in the language of the supremacy clause and in an ambiguous suggestion by Mr. Justice Holmes. But the question was thoroughly explored during the Bricker controversy, and everyone, on both sides, firmly rejected that view. In 1957, in Reid v. Covert,41 Mr. Justice Black seized the occasion to lay that ghost to rest. Although there was no majority opinion of the Court, and Justice Black's statement was perhaps not necessary to his result, he stated that treaties, like laws, must be made “in pursuance of” the Constitution, and that

no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. ..

The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or

by the Executive and the Senate combined. 22 From our constitutional beginnings there have also been suggestions that the treaty power is limited-by implication—by other provisions of the Constitution, by the Constitution as a whole, or by the philosophy that permeates it and the institutions it established. Such limitations have principally been implied from the provisions for the separation of powers among the branches of the federal government and the division of authority between the government and the states.” An early statement of such limitations is found in Jefferson's

18 I have dealt at length with basic constitutional doctrine about treaties in L. Henkin, Arms Control and Inspectiou in American Law (1958) (hereinafter cited as Arms Control], particularly in chapter III, at 20-46. See also Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 U. PA. L. Rev. 903 (1959) [hereinafter cited as Law of the Land] ; Henkin, The Treaty Makers and the Law Makers, The Niagara Reservation, 56 COLUM. L. Rev. 1151 (1956) [hereinafter cited as Niagara Reservation].

19 International law and practice know no limitation here relevant. See L. Oppenheim, International Law & 501 (8th ed. H. Lauterpacht 1955). But cf. U.N. Charter art. 103. 20 Mr. Justice Holmes said :

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the

United States means more than the formal acts prescribed to make the convention. Missouri v. Holland, 252 U.S. 416, 433 (1920).

U.S. Const. art. VI, cl. 2 provides in part : "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

See also Arms Control 29, 169–70 n.14. The myth was repeated by John Foster Dulles shortly before he became Secretary of State, but he later repudiated the statement. Id. at 171 n.14.

21 354 U.S. 1 (1957).

22 Id. at 16–17. See also Arms Control 173 n.17. Justice Black expounded the reasons for the language of the supremacy clause that struck Holmes, see note 20 supra. See generally Arms Control 169–72 n.14.

Even the first amendment, which begins, “Congress shall make no law ..." applies to treaties as well. See Arms Control 37, 179 n.44.

23 Various statements to this effect going back to our early history are collected in H. Tucker, Limitations on the Treaty-Making Power $ $ 2-51 (1915), and Mikell, The Extent of, the Treaty:Making Power of the President and Senate of the United States, 57 U. Pa. L. Rév. 435, 436–38 n.i (1909).

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