Gentlemen, would you please come up to the witness table. I have known Professor Henkin over a period of years and have much admired him. He is one of the foremost, if not the foremost, constitutional expert and human rights expert in our Nation. I welcome you all, gentlemen. I do not know in which order you would care to begin. Perhaps Professor Henkin, an old friend of the committee, might lead off. [Professor Henkin's biographical sketch follows:] BIOGRAPHICAL SKETCH OF Professor LOUIS B. HENKIN University Professor, Columbia University, 1979– Co-Director, Center for the Study of Human Rights, 1978– Member, War and Peace Institute. Member of the Bar of the State of New York and of the Supreme Court of the United States. OTHER PROFESSIONAL ACTIVITIES Chief Reporter, Restatement of the Foreign Relations Law of the United States (revised), American Law Institute, 1979 Member, Advisory Committee, U.S. Task Force on Law of the Sea. President, U.S. Institute of Human Rights, 1970- Member, Board of Directors, Lawyers Committee for International Human Rights. Member, Board of Advisers, International Project, Center for Law and Social Policy. Member, Board of Editors, American Journal of International Law, 1967- ; Co-editor-in-chief, 1978 Member, Board of Editors, Ocean Development and Internal Law Journal, 1973 Member, Board of Editors, Jerusalem Journal, 1976 United States Member, Permanent Court of Arbitration, 1963–1969. Fellow, American Academy of Arts and Sciences, 1974 Born, November 11, 1917. A.B. Yeshiva College, 1937; LL.B. Harvard Law School, 1940; L.H.D. Yeshiva University, 1963. Law Clerk to Judge Learned Hand, United States Court of Appeals, 1940-41. Law Clerk to Mr. Justice Frankfurter, United States Supreme Court, 1946-47. Consultant, United Nations Legal Department, 1947-48. United States Department of State, 1945-46, 1948-57. Bureau of United Nations Affairs, 1948-54. Bureau of European Affairs (European Regional Affairs), 1954-57. Adviser to U.S. delegations to the United Nations General Assembly and the United Nations Economic and Social Council. Adviser at the Geneva Conference on Korea, 1954. U.S. Representative on U.N. Committee on Refugees and Stateless Persons, 1950. Associate Director, Legislative Drafting Research Fund and Associate to Council for Atomic Age Studies, Columbia University, 1956-57. Professor of Law, University of Pennsylvania Law School, 1957-62. Professor, Columbia University, 1962-. Hamilton Fish Professor of International Law and Diplomacy, 1963-78; Harlan Fiske Stone Professor of Constitutional Law, 1978-79; University Professor, 1979 Subjects: Constitutional Law; International Law; Human Rights; Law and Diplomacy in International Relations; the Law of American Foreign Affairs; the Supreme Court of the United States; Problems in War and Peace; the Law of the Sea. PUBLICATIONS Arms Control and Inspection in American Law, Columbia University Press, 1958. The Berlin Crisis and the United Nations, Carnegie Endowment for International Peace, 1959. Law for the Sea's Mineral Resources, Institute for the Study of Science in Human Affairs, Columbia University, 1968. How Nations Behave: Law and Foreign Policy, Council on Foreign Relations, second ed. Columbia University Press, 1979. Foreign Affairs and the Constitution, Foundation Press, 1972. The Rights of Man Today, Westview Press, 1978. Editor, Arms Control: Issues for the Public, American Assembly, Prentice Hall, 1961. Editor, World Politics and the Jewish Condition, Quadrangle Books. Editor (with W. Friedmann and Oliver J. Lissitzyn), Transnational Law in a Changing Society, Columbia University Press, 1972. Also, numerous articles in professional journals. STATEMENT OF PROF. LOUIS B. HENKIN, COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, N.Y., AND CODIRECTOR, CENTER FOR THE STUDY OF HUMAN RIGHTS Mr. HENKIN. Thank you for your generous remarks, Senator. In view of the time strictures I will not indulge in a lengthy identification of myself. A brief one is in my prepared statement. I speak here by invitation of Senator Church. I do not speak on behalf of my university or any organization. The views I express are my own. Let me say briefly that I strongly support U.S. adherence to the four covenants and conventions which President Carter submitted for the Senate's consent, as well, Senator, as to the Genocide Convention, which has been before the Senate now for more than 30 years, although I realize it is not before your committee at this time. I am deeply opposed, however, to most of the reservations which the executive branch has proposed for the four agreements now before you. Most of them are unnecessary and undesirable. Indeed, some of them are ignoble and unworthy of us and would largely undermine the important reasons why the United States should adhere to these agreements. I urge that your committee recommend Senate consent to these international agreements and also that you recommend against attaching most of these reservations. The firmest supporters of U.S. adherence to the agreements, I believe, are also firmly opposed to most of these reservations. Some of the reasons for this opposition are set forth in a memorandum which the Lawyers Committee for International Human Rights transmitted to Secretary of State Vance on October 15. With your permission, Senator, I should like to offer a copy of that letter and memorandum for the record. Senator PELL. Without objection, it will be included in the record. The information referred to appears on p. 48.] Mr. HENKIN. It is not my purpose today, however, to argue the case for U.S. adherence to the human rights agreements or even the case against the reservations. Senator Church invited me, and I quote from his letter: "to address the issue of whether these treaties, with or without the administration's proposed reservations, are compatible with the U.S. Constitution and the legal prerogatives of states' rights." He asked that I consider also "the effect of ratification of these treaties on the legal implementation of U.S. human rights policies." In my view, the constitutional issues can be disposed of clearly and quickly. With the advice and consent of the Senate, the President can make treaties. The international agreements before you would be ratified by the United States as treaties, and I think they are wholly proper treaties. I should hope that, in 1979, it is no longer necessary to belabor that human rights are appropriate subjects for treaties under the Constitution. The agreements deal with a matter of great international concern, matters which are important to the foreign policy and the foreign relations of the United States. These agreements were prepared under the auspices of the United Nations and, in the case of the American Convention, under the auspices of the Organization of American States; many nations already have adhered to them. The convention on the Elimination of Racial Discrimination has about 100 parties and the international covenants have more than 50 each. If it were necessary once again to prove the obvious constitutionality and propriety of U.S. adherence to such agreements, I respectfully refer the committee to an article I wrote in 1968, "The Constitution, Treaties, and International Human Rights," to be found in 116 University of Pennsylvania Law Review at page 1012. I shall be pleased to provide a copy of that for the record. Unfortunately, I do not have many reprints left at this time. Senator PELL. We will include it in the record. [From the University of Pennsylvania Law Review, Vol. 116, No. 6, April 1968] THE CONSTITUTION, TREATIES, AND LOUIS HIENKIN + 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." 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.2 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. 4 † Lines Professor of Law, Columbia University. B.A. 1937, L.H.D. 1963, Yeshiva University; LL.B. 1940, Harvard University. Member, New York Bar. 1 G.A. Res. 1961, 18 U.N. GAOR Supp. 15, at 43, U.N. Doc. A/5515 (1963). Some constitutions were drafted under direct American authority or influence; for example, those of Liberia, the Philippines, the Federal 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. 4G.A. Res. 217, U.N. Doc. A/810 at 71-77 (1948). 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 eighteenth-century 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. 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; 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 1949.10 The United States did not sign the convention, Compare United States v. Butler, 297 U.S. 1 (1936), with Steward Mach. Co. v. Davis, 301 U. S. 548 (1937). See, eg, Brown v. Board of Educ., 347 U.S. 483 (1954); Griffin v. Illinois, 351 U.S. 12 (1956). 7 Civil Rights Act of 1964, 78 Stat. 241-68 (1964), 28 U.S.C. § 1447 (d) (1964), 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-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.2d 481, 486-88 (Cal. Dist. Ct. App. 1950), aff'd on other grounds, 38 Cal. 2d 718, 242 P.2d 617 (1952). 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). |