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STATEMENT OF NORMAN REDLICH, DEAN, NEW YORK UNIVER

SITY LAW SCHOOL, AND TRUSTEE, FREEDOM HOUSE, NEW YORK, N.Y.; ACCOMPANIED BY LEONARD R. SUSSMAN, EXECUTIVE DIRECTOR, FREEDOM HOUSE

Dean REDLICH. Senator Pell, I am Dean Norman Redlich, dean of the New York University Law School. I am here as a trustee of Freedom House, representing that organization. With me is Mr. Leonard Sussman, the executive director of Freedom House.

In addition to being dean of our law school, I also have taught constitutional law for 20 years and perhaps will take the opportunity during the course of some of my comments to refer to some of the constitutional issues that have been raised earlier during these hearings.

Freedom House strongly recommends and urges this committee to consent to the ratification of the four covenants that are before you.

We do not see any significant constitutional problems involved. There is no question in my mind that these treaties are within the scope of the treaty power. They do not represent any extension or enlargement of Federal power vis-a-vis the States in any way that is significant.

They probably, as the State Department letters indicate, are selfexecuting, and we do not feel that a specific reservation to that effect necessarily is required, because I believe that under the terms of the treaties they probably are self-executing in their nature.

Moreover, under the Reid v. Covert doctrine, to the extent that these treaties authorize actions which violate rights which are secured by our Constitution, they would be inoperative within the United States.

Freedom House, as an organization, feels very strongly that it is improper to denigrate certain political rights, such as free speech, free press, right to assembly, freedom of religion, and the right to vote, in favor of such rights as the right to be free from torture and the right to be free from arbitrary arrest. It is an encouraging thing that in the Covenant on Civil and Political Rights, all of these rights, though perhaps not at the level we would like, are set forth as being guaranteed.

I emphasize that it probably is no accident that torture occurs in those countries where people are not free to talk about it or print about it. There is loose in the world the unfortunate concept that, while governments may not be able to torture people, perhaps we can look the other way if they shut down the newspapers or if not everybody has the right to vote.

This is completely anathema to the American system. One of the main thrusts of my testimony this morning will be to urge this committee to recommend to the Senate that in the resolution of consent we do make clear the extent to which, these covenants, particularly the Covenant on Political and Civil Rights, set standards which we in the United States do not find acceptable.

Notwithstanding the fact that the covenants in some significant respects, set standards which are below those which we find acceptable, the covenants clearly do raise the level of human rights of the vast majority of countries and peoples of the world. From a foreign policy standpoint, if we, as a national policy, are urging the protection of human rights throughout the world, it simply is hypocritical for us to urge those standards for others, and for ourselves not to agree to the international documents or participate in the international enforcement mechanism which endeavor to promote those standards.

We believe that it inhibits our own strength in the world, that it inhibits the sincerity of our arguments if we refuse to participate and refuse to ratify these treaties.

We are not concerned about losing the battle of public opinion if we participate in the international enforcement forum. Possessing the most free society the world ever has known, the United States will not lose a propaganda battle if we should be charged with violations of human rights in our own country. The argument has been made that we will be accused of racism, or we will be accused of having political prisoners in our jails. I think we should welcome the opportunity to state the American case, and the American record for freedom, in any international tribunal anywhere in the world. One of the chief reasons why we urge consent to ratification is to give us entree into those channels. By not being part of the process, we are precluded from calling other countries to task for violations of standards to which we long have adhered.

So, with certain reservations we do urge consent to ratification.

May I say a word about the use of the term "reservation,” which has been discussed here rather loosely.

The reservations to which I will refer in my testimony do not involve the renegotiation of the treaty; they do not involve compelling other countries to accept our interpretation of the treaty. Our reservations, for the most part, simply involve calling attention to the rest of the world the fact that under American constitutional law, certain obligations which are imposed by these treaties, and certain Government actions which are permitted by these treaties, do not meet our constitutional standards and that under American law we, indeed, have a higher standard of human rights, civil liberties, and civil rights than are recognized by the treaty. This does not involve requiring anyone else to accept our interpretation. It does not involve our desire to adhere to a lower standard than is set forth in the treaties. It simply involves our telling the world what is true, that under American constitutional law we have a higher standard of human right.

Use of the term “reservation" in that context is a perfectly appropriate action for the Senate of the United States to take in the course of the process of advice and consent. We do not agree, however, with the State Department position that we should reserve to ourselves a right to set a lower standard than is set forth in the treaty. There are few instances, very few, in which the treaties do set a higher standard than we have under American law, and we think that there is no reason why we should demand of other countries that they raise their standard to the treaty level but insist that we should be able to lower ours below the treaty level. Therefore, we would oppose the State Department position that in those few instances, since as with regard to ex post facto laws, compensation of people wrongfully accused, and perhaps the double jeopardy issue, we should allow ourselves to accept a lower standard.

The State Department has set forth reservations with regard to restrictions on freedom of speech and the press which would be permitted by the covenants. We agree that the Senate should make clear in its consent that those restrictions are unacceptable under American law. We cannot agree to limit propaganda for war, or racist opinions. We disagree with the reservation of the right to impose capital punishment. The covenants do not call for abolishing capital punishment. They seek, rather, to restrict its use to only the more heinous crimes while implicitly supporting the end of that practice. There is no need for the United States to aline itself with those diminishing number of States that still impose the death penalty. Nor should the United States assert a right to execute pregnant women, persons under 18 years of age or over 70, or those guilty of political offenses or related crimes?

We call your attention to some specific provisions of the Covenant on Civil and Political Rights which we think warrant the attention of this committee and the Senate. There should be some indication of the extent to which the Covenant falls below the American standards of political and civil rights.

Article 4, for example, states that in times of public emergency which threatens the life of the Nation and the existence of which officially is proclaimed, some civil rights may be derogated. At a minimum, the emergency is defined far too broadly in the article. Moreover, this article fails to except from its terms the rights guaranteed in article 14, dealing with criminal prosecutions, article 17, the right of privacy, article 19, the right of freedom of expression, and article 25, the right of participation in public affairs, including the right to vote and the right to engage in public service. The failure of the State Department to call attention to the fact that under the treaty all of these rights can be derogated in times of emergency indicates a peculiar insensitivity to the importance of those rights. The treaty leaves these rights subject to abrogation upon the declaration of a public emergency which, those in power, threatens the life of the country.

This is an unacceptable standard under American law. We should call the attention of the other nations to that fact.

Article 14 permits the exclusion of the public and the press from trials in which “morals, public order, or other national security require closure." Again, this is an unacceptable standard.

Article 17, while it protects the right of privacy, protects an individual against unlawful attacks on his honor and reputation. This vague standard easily could be used to suppress free speech in other parts of the world.

Article 18 permits limitation on freedom of worship to protect public safety, order, health, or morals, and similar language is found in article 19, guaranteeing freedom of expression, article 21 dealing with freedom of assembly, article 22, dealing with freedom of association, including the right to join unions, and article 12, dealing with the right to travel.

Senate consent to the ratification of the Covenant on Civil and Political Rights should not be viewed as acceptance by the United States of these standards.

In sum, although we are concerned about the seeming acceptanee of a standard of political and civil liberty which is unacceptable under American constitutional law and which really should be unacceptable to us as a world goal, we recognize that these covenants do indeed set a much higher standard than exists for most of the world. It provides us the opportunity through the enforcement

process to hold other governments to that standard. It will be an important addition to our foreign policy in this area. For those reasons, we urge consent to ratification. [Dean Redlich's prepared statement follows:)

PREPARED STATEMENT OF DEAN NORMAN REDLICH I am Norman Redlich, Dean of the New York University School of Law, and I am appearing before this Committee as a member of the Board of Freedom House to present the position of that organization. Freedom House is a nongovernmental, voluntary association formed just prior to the United States' entry into World War II. We were created to help mobilize American support for those facing not only the complete denial of human rights and fundamental freedoms but death itself, as Nazi and Fascist hordes swept across Europe.

In the succeeding decades, Freedom House's programs focused increasingly on the hazards to freedom originating in authoritarian and totalitarian societies of both the left and the right. We recognize that deprivations of human freedom result no less from the grim exploitation of the utopian ideal by leftist extremism, as from militant rightist authoritarianism. Both must be regarded as tyrannies, and their victims helped by nonviolent means to work themselves free of their chains.

With that objective, for mcre than 10 years we have concentrated on researchbased approaches to the advancement of human freedom. Through conferences, studies and publications, generally reported widely in the mass media, we have focused public attention on countries in which human rights have been restricted, in many ways. The past eight years, through our Comparative Survey of Freedom we have examined the level of political rights and civil liberties in every country and dependent territory-some 213 places. For Freedom House, therefore, the fundamental determinant of the human condition in any country is its practiced--not merely its constitutionally promised-system of political rights and civil liberties. The assurance of adequate political rights and civil liberties enables the body politic and its representatives to make appropriate policy choices. The citizenry and government can then devise ways to meet economic and social needs.

To determine the level of rights and liberties, we examine each country against some two dozen criteria. We ask whether: the citizen has a choice of parties or factions within a single-party system; elections are fair and frequent, and result in the assumption of power by a properly selected victor; political choices are possible at local as well as nationaỈ levels; måss communications system are independent, and, if so, free of pressuring by the regime; the judiciary is independent; fair procedures and respect for the inviolability of the individual are respected in all criminal trials; and voluntary association and freedom of assembly and speech, protected.

For longer than a year, the Board of Trustees of Freedom House has examined the four treaties pertaining to human rights submitted in February 1978, by President Carter to the Senate of the United States. Our testimony places particular emphasis on the Covenant on Civil and Political Rights, although we support all of the covenants and recognize their importance in expanding international protection of human rights. We regard political rights and civil liberties as the cornerstone of social and economic development, and the free flow of information as vital to the securing and retaining of all other freedoms.

The covenants provide a floor for guaranteeing the rights of the individual, not a ceiling which governments may impose to restrict further or limit the development of human rights within their own countries. Most of the world's population still are denied many fundamental freedoms. Our country, particularly these past 3 years, is publicly committed to assessing human-rights practices in other countries as one important criterion for American policies abroad.

We welcome these covenants as a means of institutionalizing the universal commitment to human rights at a higher level than presently prevails in most countries. We note that some nations which ratified the covenants earliest are among the most severe violators of the rights of their own citizens. Yet we believe it is useful to employ the mechanism of the covenants to help focus international attention on those places where human rights are regularly violated or grossly ignored. Where United States practice does not meet the standard set forth in a covenant, ratification will also serve as a basis of further improvement in our own system.

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Freedom House is convinced that ratifying these covenants cannot affect the sovereignty of the United States: Ratifying the covenants has not undermined the independence of any of the signatories. Since the substantive provisions of these treaties are properly viewed as not self-executing, their provisions are not operative within the United States unless Congress acts, except to the extent that American law already provides for the securing of rights guaranteed by the covenants. More. over, the Supreme Court has held that a treaty cannot contravene constitutional guarantees.

Thirteen years have elapsed since the U.N. General Assembly adopted the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights. In that time, the world has witnessed massive cruelty and the gross violation of the civil and political rights of individuals and groups. Torture, detention without due process, harassment of dissenters, institutionalized assassination and disappearances, assignment of mentally healthy political dissenters to "psychiatric institutions, censorship, banning of person-to-person contact, separation of families, mass expulsion of citizens, curtailment of travel within and between countries, denial of the citizens' right to read and hear diverse views and information—these and many other curtailments of individual freedom and rights have continued unabated in many countries, including those nations which have signed one or more of these treaties. To what avail, then, the ratifying of these instruments by the United States?

Freedom House believes that treaties which commit nations to higher standards of human rights than they currently practice serve an educative function. The 4year history of the Final Act of the Conference on Security and Cooperation in Europe (the Helsinki Accords of the CSCE) demonstrates how international attention to violations of human rights within countries can generate ameliorative changes.

The Basket Three standards of the CSCE for improving human rights and relationships have served as a platform for many individuals and groups in Eastern Europe. They have employed the Accords to secure some improvements in their condition. They have done so by using the standards of human rights set forth at Helsinki in 1975 to generate international pressure on their own governments. Those in Eastern Europe who are most directly under the gun tell us unmistakably and unanimously that international accords have helped them within their own countries. Despite repeated claims by oppressive countries that treat"ment of their citizens is strictly an internal affair, and international interest an unwarranted intrusion, adherence to such accords and to the covenants under -consideration mandates international criticism of their domestic policies,

That is not to say that the covenants open any country—the United States or another—to international juridical procedures on the terrain of the challenged country. The covenants do provide for reports by nations on the status of their citizens under the various commitments made to assure specific rights of citizens. These reports may be fairly devised, or they may become channels for selfserving propaganda attacks. International forums will allow the covenants to be used for constructive criticism or vicious diatribes. But such debates are not new in the international arena, and indeed they will continue whether or not the United States ratifies these covenants. The difference is that, with ratification, the United States will be able to employ the machinery of the UN Human Rights Committee to observe the actions of other countries, and be better able to focus the international spotlight on those places where violations of human rights are endemic.

The United States has had some success in raising the level of moral discourse in world affairs. For several years the Department of State has been required by the Congress to provide country reports on the status of human rights in more than 100 nations. A new Division of Human Rights and Humanitarian Affairs in the Department has institutionalized our national concern for human rights issues at the level where United States foreign policy decisions are made. Ratification of the covenants on human rights is a logical further step in providing additional implements for advancing individuals rights.

With appropriate reservations, the Senate should consent to ratification of these treaties. The President should then assume the initiative employing the Human Rights Committee, and, similar enforcement mechanisms created by the treaties, to monitor the practice of human rights around the world. These covenants can then become an important adjunct to those programs and policies already operated unilateraily by the United States in seeking to raise the universal standard of human rights.

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