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Mr. OLIVER. Let's look at it practically in the worlds of international law and American constitutional law.

In American constitutional law, if the treaties were to be restricted by the Senate in giving its advice and consent, that restriction itself is a condition that limits the Senate's consent. There is no question about that. I am a coauthor of the "Restatement of Foreign Relations Law of the United States," a publication of the American Law Institution. We went into this question thoroughly.

As is well known, the Senate may condition its consent, and this condition must either be accepted by the President or he does not promulgate the treaty. It is well-known, all too well known tragicallythat Senate reservations which are seriously incompatible with the nature and the purpose of some treaties will kill the treaties—they would have to be renegotiated and they are not renegotiable.

But if the Senate makes them and the President accepts them, they are the law.

Also I refer briefly to the Supreme Court's job-or the Federal Court's job culminating in the Supreme Court-of interpreting the language of the treaty itself, should it come to that in the Supreme Court, of the clause that Mrs. Schlafly has called attention to. It would seem to me, frankly, to be a rather far-fetched interpretation of the treaty to find that noninvidious differentiation between the sexes in the matter of military service could not be made.

Internationally, the fear may be expressed—but I don't think Mrs. Schlafly is very concerned about that fear—that our national interpretation and application of the treaty might be out of step with the plain meaning that, say, the International Court of Justice at the Hague might give to the treaty. This is not a very great risk or danger, especially in the situation that disturbs Mrs. Schlafly seemingly the most.

CONSTITUTION PREVAILS OVER THE TREATY Senator Pell. Am I correct in saying that the Constitution prevails over the treaty if there is a conflict between the two?

Mr. OLIVER. The Constitution prevails over a treaty, according to the best we have from the Supreme Court as to governmental action that the Constitution prohibits. We interpret that as meaning the "no's” in the Bill of Rights, but not the allocation of legislative power to Congress under article 1 of the Constitution, vis-a-vis the treaty power in article VI.

Senator PELL. Since most of our political rights and human rights are based in the Constitution, if the Constitution is paramount, I don't see how this treaty could affect constitutional rights of our citizens, do you?

Mr. OLIVER. I think Mrs. Schlafly might want to respond to that. I think I know what her answer to that will be, but I defer to her here.

Senator Pell. Let me ask the same question of you, then, Mrs. Schlafly.

Since the Constitution is paramount over a treaty and since the rights of our citizens are based in the Constitution, as a general rule, why would they be in any danger of being threatened by this treaty?

Mrs. SCHLAFLY. Thank you, Mr. Chairman.

I do believe that constitutional rights are threatened by the treaty. As I quoted from former Secretary of State John Foster Dulles;

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"Treaties can cut across the rights given the people by the constitutional Bill of Rights."

Senator PELL. Yes; but he was not the Supreme Court. He was merely expressing his subjective opinion.

Mrs. SCHLAFLY. But there is not any Supreme Court decision that denies that. Furthermore, this colloquy that just went on I do believe was irrelevant to the point that I made. The right of women to be exempt from the draft and exempt from combat duty is not a constitutional right. No way can you say that is a constitutional right. It is a right that exists by virtue of the many statutes passed by the U.S. Congress.

Mr. Oliver said that we can condition or have amendments or reservations. I would point out that the language the State Department proposed about the covenant not being self-executing is not an amendment, is not a reservation, and is not a condition. It is simply a declaration. It is my position that a declaration has no effect at all. Who is going to pay any attention to that? Nobody even claims that these declarations or unilateral understandings or statements have any binding legal effect.

Senator JAVITS. I would like to hear Mr. Oliver's response.
Mr. OLIVER. May I simply say that, with respect, I beg to differ.

I I refer to the analysis in the "Restatement of Foreign Relations Law of the United States.” Anything the Senate does in the matter of conditioning, qualifying, or interpreting a treaty when giving its advice and consent is, as a matter of executive practice, and I believe enforceable executive practice, respected by the executive branch in bringing a treaty into effect. I think this would be enforceable by the courts.

Senator Pell. I do not want to take more than my share of time, but I would like to ask Mr. Bitker a question about a point he made. As I said earlier, I was deeply moved by his words in pointing out that I had not done well by my father so far as the Genocide Convention is concerned, and that is probably correct.

Mr. Bitker, since you were a spokesman for the ABA when it came out for the convention, do you feel the public opposition to it is as great as it is to these four treaties?

Mr. BITKER. Do you mean as to the Genocide Convention?
Senator PELL. Yes.

Mr. BITKER. Oh, I think all opposition to Genocide long has been washed away. I think there are still a number of Senators who feel, and sincerely so, I assume, that this is an interference with sovereignty. I think they are only a handful. With all due respect to them, they have been effective, they have been vocal, and they have succeeded in preventing our country from joining the international community in making genocide an international crime.

Senator PELL. As you know, there are some of us who believe very strongly that it should be passed. Senator Proxmire is doing the most about it in that every day he makes a speech on the floor regarding the convention. And yet, the informal nose count or opinion of our leadership regarding the Senatorial count is that the treaty would have a very hard time going through.

Mr. BITKER. Mr. Chairman, it is hard for me to believe that if it actually got down to a vote on the floor of the Senate this treaty would be defeated. I just cannot believe that.

Senator Pell. I think the worry is whether we could get it to a vote, whether it would be filibustered.

Mr. BITKER. That is something else. There are ways now of circumventing filibusters. I would hope that those of you who feel strongly about this, and I know that includes Senator Javits and Senator Proxmire, who unfortunately is not a member of this committee, could take some positive action in this regard. I might say that I have contributed to Senator Proxmire's daily statement on the floor.

I just think, if it got down to it, it would be a disgrace if the U.S. Senate said no to making genocide an international crime. I do not think the Senate actually would do that.

Senator Pell. Thank you very much for spurring us along. I believe my time has elapsed. í

Senator Javits. 1 Senator Javits. I want to say to Mr. Bitker that it may be a disgrace, but I am not so sure we would not be disgraced.

Mr. BITKER. Oh, I would hope not.

Senator Javits. 'We have reported out the Genocide Convention four times on my motion on four different occasions and we have been unable to have it ratified. On one occasion we got to 50 or 60 votes, and we just could not make it the rest of the way. We probably could get 60 votes to close debate, but I even have some doubts about that. As to whether we could still get two-thirds to ratify, I just do not know.

I do agree with you on one thing. The next time we go at it, and we will, I assure you of that-it may be that we again will simply have to run the risk on the floor. I agree that the Senators who are needed to ratify the Genocide Convention are unlikely to vote for it unless and until the matter is really before them and they have to vote yea or nay.

So you are partially right. It has been very difficult for me. Senator Proxmire has been fantastic, as Senator Pell has said, in getting the leadership to schedule it wouthout our having the necessary Senators on the line, not for closure, but for ratification.

I promise you that if it is humanly possible, we will try it again. I do have one question. I understand Mrs. Schlafly's views, and I have heard her on previous occasions. The fact that I do not agree with her is neither here nor there.

Mrs. Schlafly, I do think you can be sure that whatever we do about these treaties, we will be extremely careful in securing Bill of Rights protections and so on, and perhaps also something about whatever compulsory military service possibilities exist though I really think it is a highly impractical fear. I think whatever we do adopt will certainly make it very clear that there is nothing in these treaties that requires us to do so. I think, as the treaties will emerge from the Senate this will not be a valid fear. But I understand your view and I respect it. I always have. We will certainly take it into account.

If you wish to make any comment, please do so.
Mrs. SCHLAFLY. Thank you, Senator.

Again, some of the matters that I addressed were not questions of constitutional rights, such as the matter of exemption from the draft and the matter of the husband's support of his wife. These are not constitutional rights. They are matters of legislation. The language

say it?

clearly says in the covenant that we bind ourselves not to discriminate on account of sex, and both of those wide areas of law do involve a sex discrimination. If the covenant does not mean that, then why does it Senator Javits. Of course, the Civil Rights Act of 1964 says it, too.

Mrs. SCHLAFLY. But it does not apply to the draft and it does not apply to marriage laws. It applies only in the specific areas that the Civil Rights law addresses, and I do believe that legislation by our Congress addressing particular issues is the way we should deal with particular problems.

Senator JAVITs. Do you construe that particular clause to which you referred as self-operative? Doesn't it have to be continued in a law? In other words, absent law which will draft women, does that make us draft women?

Mrs. SCHLAFLY. No. But it makes us draft women if we have a law that drafts men. I think we have to consider the possibility that we will have a military draft sometime in the furture.

Senator Javits. May I ask a corollary to that? If we have a law that drafts men and does not make provision respecting women, then what?

Mrs. SCHLAFLY. But that would be sex discriminatory.
Senator JAVITS. No.

Mrs. SCHLAFLY. The draft law always has said "male citizens of 18 must register.” That is a sex discriminatory law.

Senator Javits. Only if we say nothing in the treaty about making our law, domestic law, superior to those provisions of the treatythat is the question.

Mrs. Schlafly, where I think our differences come is that I believe, along with Professor Oliver, that reservations and understandings as we make them are binding on the President. He may not be happy with them, but we have a commitment to them from the President before we give him these treaties. I say this for the information of the country. I am not really trying to persuade you.

We already have a written commitment from the President, it is in the record that any reservation or understanding which we make and which is approved by the Senate as part of the instrument of ratification on SALT II, he will accept as binding on him. I can assure the country that we will do the same thing regarding these four treaties.

So, it will be a binding agreement because the President will have specifically agreed to it. I don't think your view will be warranted because I do not think the American people can assume that the President is going to violate the law with impunity and expect to get away with that.

Mr. Bitker, did you wish to respond?
Mr. BITKER. Yes, thank you.

Mr. Chairman, going back to the question that you asked earlier regarding the relationship between treaties and the U.S. Constitution, it long has been the basic belief that no treaty can be in violation of the U.S. Constitution.

Let me read a sentence or two from the basic Supreme Court pronouncement on this subject. It appears in Geofroy v. Riggs and this goes back to 1890. I will quote:

It would not be contended that the treaty making power extends so far as to. authorize what the Constitution forbids or a change in the character of government or in that of one of the states, or a cession of any personal territory of the latter without its consent.

In other words, a treaty can do anything that is not contrary to the U.S. Constitution.

Senator Javits. What is the case citation, please?

Mr. BITKER. It is called Geofroy v. Riggs. It is 133 U.S. 258, decided in 1890. It is to page 267.

Senator Javits. Thank you very much.
Thank you, Mr. Chairman.

Senator PELL. Are there any further comments to Senator Javits' question?

Senator Javits. Does Mr. Oliver have a response?

Mr. OLIVER. It is well established in U.S. foreign affairs law that an earlier treaty cannot prevail as internal law over a later, inconsistent act of Congress. If Mrs. Schlafly is afraid that this is not so, we can cite her the authority. This is to say even if the treaty should be in effect as law and the draft consequences should be as she fears, Congress could rectify by simple majority vote in both Houses that problem.

Senator Pell. Mrs. Schlafly, did you have a reply?

Mrs. SCHLAFLY. Yes; I would like to comment on that. That is exactly why I introduced the comment from Professor Sohn from the Proceedings of the American Society of International Law in my oral statement. He addressed that matter and said that yes, multilateral treaties would bind future law, domestic law, passed by the United States.

Now maybe Mr. Sohn is not making the law of this country, but, nevertheless, there obviously are authorities who disagree and we do not have any final decision on the issue.

Again, I would say that these arguments do not address the point I made because there is no constitutional right not to be drafted. So, even if your argument about constitutional rights were correct, it would not address some of the objections I made.

Senator PELL. Senator Helms.
Senator HELMs. Thank you, Mr. Chairman.

With all due respect to witnesses and to my colleagues, I don't think I want to let it stand on the record that it would be a disgrace for there to be apprehension about the implications of the Genocide Convention. There are some pretty good constitutional lawyers, Sam Ervin being one of them, who have raised legitimate questions concerning this. So I do not think we just ought to let it stand that the Senate is disgracing anybody by being apprehensive about this treaty. There is good faith on both sides, I acknowledge that. But I think it is going a little far to say it is disgraceful.

Mrs. Schlafly, I have read your statement with interest and admiration. I take it that you are concerned about the vagueness of some of these provisions which invite interpretations potentially adverse to the sovereignty of this country. You are certainly raising questions about the individual rights of our people. Is that correct?

Mrs. SCHLAFLY. Yes; that is correct. I think the testimony here this morning shows that there is a difference of opinion about the effect of the treaties, and how binding they are on domestic law, and

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