Obrázky stránek

I turn now to the question of reservations, dealing first with the State Department's reservations, and then with suggestions of our own. The State Department has set forth reservations in each of the four covenants with regard to the restrictions on freedom of speech and press permitted by the covenants in order to punish by law the dissemination of ideas based on racial superiority or hatred, or propaganda for war or racism, or incitement to such acts. (Elimination of Racial Discrimination, Art. 4 (a) and (b); Economic, Social, and Cultural Rights, Art. 5(1); Civil and Political Rights, Art. 5(1), Art. 20; and American Convention, Art. 13.) We agree.

Freedom House notes that the State Department's reservations reject specific restrictions on the freedom of individuals and agencies to convey information. There should be the further statement that under the United States Constitution the media of communication which are independent of government, even though regulated (as in the case of radio and television), cannot be assigned any editorial responsibilities by the government, and the media cannot be punished for political publications or broadcasts except within the very narrow limits defined by the Supreme Court as consistent with the First Amendment.

In some instances, moreover, the State Department's reservations with regard to matters of free expression do not go far enough. The American Convention (Art. 13, 14, 15 and 16) permits broad exceptions to the rights of assembly and association and permits government censorship and punishment of expression which would be entirely inconsistent with the American Constitution. There should be a reservation for the American Convention identical to that which the State Department recommends with regard to the other three covenants. These reservations call the attention of the other signatories to the fact that the protection for free expression set forth in these covenants is less than that provided by the United States Constitution.

We concur in other State Department reservations, specifically: the Federal Government's inability to commit state and local governments to specific acts, a reservation made necessary by Art. 28 of the Economic, Social, and Cultural Rights Covenant; the possible Constitutional limitation on the power of the United States to deal with certain private acts of racial discrimination (see Art. 2, 3, 5 of the Racial Discrimination Convention); the assertion of the right of all individuals to own property alone as well as in association with others, and not to be arbitrarily deprived of property (see Art. 2 and 25 of the Economic, Social, and Cultural Rights Covenant).

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 the practice. There is no need for the United States to align this country actively with those diminishing numbers of states that impose capital punishment. 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 common crimes.” (See Art. 6, Civil and Political Rights and Art. 4(2) American Convention.).

Nor should the State Department object to the fact that the Civil and Political Rights Covenant gives individuals greater rights with regard to compensation for unlawful arrest and protection against ex post facto criminal prosecutions than is provided under American Constitutional law (see Civil and Political Rights, Art. 9(5) and 15(1)). Since the covenant is not self-executing, why should the United States not agree to try to take such steps as may be within its authority in order to enlarge these procedural protections?

In addition to the State Department's reservations, and our recommendations above to strengthen them, Freedom House would add reservations to the following Articles on the Covenant on Civil and Political Rights. In doing so, we do not suggest that the covenant should be renegotiated, but rather we recommend that the Senate Resolution consenting to the covenant should make clear that the United States regards the covenant as deficient in certain respects and intends to work for raising the level of human rights above those which the covenant provides.

Article 4 states that "in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”, some civil rights may be derogated. At a minimum, the “emergency” is defined too broadly in the Article. Moreover, the failure of the Article to except from its terms the rights guaranteed in Articles 14 (Criminal Prosecutions), 17 (The Right of Privacy), 19 (Freedom of Expression), and 25 (Participation in Public Affairs, Including the Right to Vote and to Engage in Public Service) leaves these rights subject to abrogation upon the declaration of a “public emergency” which, in the view of the government, threatens “the life of a nation.”

Article 14 permits the exclusion of the public and the press from trials in which morals, public order or national security require closure. Trials should be closed only for the most urgent reasons, involving a direct threat to the orderly conduet of the trial, and with the assurance that due process will be observed.

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

Article 18 permits limitations on freedom of worship to protect “public safety, order, health, or morals” or the freedom of others. Similar language is found in Article 19 (guaranteeing freedom of expression) and Article 22(2) (freedom of association including the right to join trade unions). These broad exceptions unacceptably compromise these basic rights.

Senate consent to the ratification of the Covenant on Civil and Political Rights, along with the three other covenants should not be viewed as acceptance by the United States of a standard for political rights, civil rights, and civil liberties weaker than that guaranteed by the Constitution of the United States. While Freedom House welcomes the international recognition of the level of human rights guaranteed by these covenants, the United States should continue to strive for more.

On the other hand, there are instances where the covenants provide rights which are not found in existing United States law. For example, the Covenant on Economic, Social, and Cultural Rights (Art. 3) provide assurances as to "the equal rights of men and women to the enjoyment of all economic, social and cultural rights set forth in this Covenant.” This statement probably goes beyond that which presently exists under United States law, although Congress has broad legislative powers to achieve such rights. Another example of a higher standard set by a covenant than is provided in United States law is Article 14 of the Covenant on Civil and Political Rights which includes some provisions for defendants that are more favorable to them than may exist in federal courts under the United States Constitution. The United States should welcome these higher standards and commit itself to trying to achieve them. We should not demand less of ourselves than we do of others.



WASHINGTON, Nov. 16.–Freedom House, testifying here today before the Foreign Relations Committee, urged the U.S. Senate to ratify four international covenants on human rights. The organization supported some reservations proposed by the State Department and added others for transmittal to countries signing the treaties.

The organization's spokesman was Norman Redlich, a trustee of Freedom House who directed the organization's year-long study of the covenants. He is dean of the School of Law of New York University:

“The covenants,” said Dean Redlich, 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 countries." He welcomed the covenants as a means of institutionalizing the universal commitment to human rights at a higher level than presently prevails in most countries.

The Freedom House survey of political rights currently regards as free only 35 percent of the world's population in 30 percent of the countries. “Some nations which ratified the covenants earliest are among the most severe violators of the rights of their own citizens,” Dean Redlich added. Bulgaria, Libya and Rwanda were cited by Freedom House.

Freedom House, said Dr. Redlich, “is convinced that ratifying these covenants cannot affect the sovereignty of the United States.” The provisions "are properly viewed as not self-executing,” he added. Their provisions are not operative within the United States unless Congress acts."

The treaties, however, “commit nations to higher standards of human rights than they currently practice and serve an “educative function," he said. Freedom House urged the Administration to employ the covenant reporting machinery


available only to countries which ratify the agreements. This would enable the U.S. to "focus the international spotlight on those places where violations of human rights are endemic.” The monitoring of the Helsinki Accords by this and other nations, said Dean Redlich, provides a useful precedent.

Freedom House urged strengthening some reservations recommended to the Senate by the State Department. It objected to restrictions on freedom of speech and press permitted in all four covenants in order to punish by law the dissemination of ideas based on racial superiority, war propaganda or incitement to such acts. Freedom House urged the U.S. also to declare that media of communication which are independent of government “cannot be assigned editorial responsibilities by the government,” and cannot be punished for “political publications or broadcasts except within the very narrow limits defined by the Supreme Court as consistent with the First Amendment."

The organization concurred in other State Department reservations, specifically: the Federal Government's inability to commit state and local governments to specific acts; the constitutional limitation on the U.S. government to deal with certain private acts of racial discrimination; and assertion of the right of all individuals to own private property.

Freedom House disagreed with the State Department's reservation of the right to impose capital punishment. The covenants do not call for abolishing capital punishment. Nor should the U.S. assert a right to execute pregnant women, persons under 18 or over 70, or those guilty of “political offenses or related common crimes,” said Dean Redlich.

Where the covenants provide rights not found in existing U.S. law, this country, said Freedom House, should "welcome these higher standards and commit itself to trying to achieve them.” One such higher standard would provide assurances as to “the equal rights of men and women to the enjoyment of all economic, social and cultural rights” set forth in the covenant.

President Carter transmitted to the Senate February 23, 1978 the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the American Convention on Human Rights. The first three agreements were approved by the United Nations General Assembly in 1965-66, and the fourth by the Organization of American States in 1969. Some 98 nations have ratified the Convention on Racial Discrimination, and about 50 countries have approved the other two U.N. agreements.

Freedom House, in its 38th year, is a national nonprofit, nongovernmental organization that seeks to strengthen free institutions at home and abroad. Programs include the Comparative Survey of Freedom that examines the level of political rights and civil liberties in every country.

Senator PELL. Thank you Dean Redlich.
Mr. Carey, we would be happy to hear from you.
Mr. Carey's biographical sketch follows:]

VITAE Carey, John, lawyer; b. Phila., June 11, 1924; a. Henry Reginald and Margaret Howell (Bacon) C.; grad. Milton Acad., 1942; B.A., Yale, 1947; LL.B., Harvard, 1949; LL.M. in Internat. Law, N.Y.U., 1965, m. Patricia F. Frank, Feb. 24, 1951; children-Henry Frank, John Douglas, Jennifer Patricia. Admitted to Pa. bar, 1950, N.Y. bar, 1957; practiced in Phila., 1949–55, N.Y.C., 1956—; asst. dist. atty., Phila., 1952-54; cons. spl. com. fed. loyalty-security program Assn. Bar City N.Y., 1955-56; partner firm Coudert Bros., 1961– Dir., Walker & Co. Mem. Faculty N.Y.Ú. Law Sch., 1966—. Mem. city council, Rye, N.Y., 1964-68, 72–74, mayor, 1974–. Alternate mem. UN Subcommn. on Prevention Discrimination and Protection of Minorities, 1966—; alternate U.S. rep. UN Human Rights Commn., 1968. Trustee, Little Harbor Chapel, Portsmouth, N.H. Mem. Am., Internat., N.Y. State, Phila, bar assns., Assn. Bar City N.Y. (rep. at UN), Am. Soc. Internat. Law, Council on Fgn. Relations, Phi Beta Kappa. Author: UN Protection of Civil and Political Rights, 1970. Home: 860 Forest Ave, Rye NY 10580. Office: 200 Park Ave, New York City, NY 10017

[ocr errors]



COMMITTEE, NEW YORK, N.Y. Mr. CAREY. Thank you, Senator Pell.

I am here on behalf of the Helsinki Watch Committee. We have a prepared statement which is available for insertion into the record. Since I understand it will be inserted in full, I will be very brief and merely summarize it and make a few other impromptu remarks.

Senator PELL. That will be appreciated.

Mr. CAREY. The Helsinki Watch Committee urges the ratification of the two international human rights covenants. We also urge that the President sign and send to the Senate and that the Senate give advice and consent to ratification of the optional Protocol to the Civil and Political Rights Covenant, which is the third instrument adopted, all at the same time, by the General Assembly in 1966. It, too, is now in effect. It is under this Optional Protocol that the Uruguayan case, referred to by Mr. Justice Newman a few moments ago, has come fully through the process of the Human Rights Committee.

I would like to cite some three United Nations documents for the record in which information on that case can be found since, Senator Pell, you made an inquiry of Justice Newman as to enforcement in this area, and he responded by citing this case. So I think it would be helpful to have the citations.

The case itself appears at United Nations document A-34-40, annex VII.

A Uruguayan Government response to this case appears at A-C334–3, and a reply to the Uruguayan response under date of November 1, 1979 can be found under the citation of A-C3–34-6.

This last document is presented by the permanent representative of Panama. It consists of a letter addressed to the Minister of Foreign Affairs of Panama from Mexico City by a Uruguayan national. This perhaps shows that when it comes to enforcement of the International Covenant on Civil and Political Rights, there do not seem to be any clear-cut blocs at work for or against a particular decision.

I also would like to stress, referring to our formal statement, the fact that in November 1980, the second followup conference on the Helsinski Accords will be conducted in Madrid. The Helsinki Watch Committee urges that the covenants and the Optional Protocol be ratified before November 1980.

President Carter signed the covenants the day after the last Helsinki Review Conference opened in Belgrade in 1977. This postponed all questions as to the sincerity of the United States concern for human rights which might have resulted from our failure to accede to the covenants. If we have not ratified, however, by the beginning of the Madrid Conference next fall, the United States will be extremely vulnerable to criticism.

Consider, for example, what our ambassador to the Madrid conference will face. The following is a summary of a telling attack delivered by the Soviet delegate to the United Nations Human Rights Commission in 1966.

Mr. Chairman, in our formal statement is quoted an official summary of the attack on the United States which was levelled by the Soviet representative on the grounds of U.S. nonratification of human rights covenants.

Mr. Chairman, since 1966 I have served as Alternate U.S. Member in the United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, to which Mr. Justice Newman earlier referred. I can say from personal experience that these attacks do occur from time to time and they are extremely difficult to deal with. All that one can say being in that position is that one personally wishes that the U.S. Senate would give its advice and consent and that this range of human rights treaties in fact would be ratified so that the United States could hold up its head in international fora.

Thank you, Mr. Chairman.
[Mr. Carey's prepared statement follows:]

PREPARED STATEMENT OF JOHN CAREY The progressive establishment of a body of international law designed to protect the rights of the individual is among the most significant developments in post-war relations among nations. The U.N. Charter, the Universal Declaration on Human Rights, the Genocide Convention, the International Covenants, the Helsinki Accords, and numerous other agreements have defined minimum standards for human rights which transcend ideological and political boundaries. In making human rights considerations a legitimate subject of international inquiry these documents have provided a means of redress, however imperfect, for victims of governmental abuse.

This trend is one in which the United States could reasonably have been expected to play a leading role, given our country's traditional commitment to the ideals of individual liberty and fundamental freedom. Indeed, the principle that the rights of citizens are not subservient to the prerogatives of governments is nowhere so eloquently espoused as in the Declaration of Independence, nor better elaborated than in the U.S. Constitution.

The United States however has not only failed to take the lead, but has lagged far behind other nations in its participation in international human rights instruments. The Convention on Genocide, a treaty which President Carter rightfully called the world's affirmation that the lessons of the Holocaust would never be forgotten,” was opened for ratification over thirty years ago. Yet the United States Senate has not yet seen fit to allow this country to join the international community in making such an affirmation.

To our credit, the United States was an early supporter of the Universal Declaration on Human Rights, adopted by the United Nations in 1948. But we have yet to ratify the two International Covenants on Human Rights which apply the principles of the Universal Declaration in binding treaty form, although we have had 13 years in which to do so.

The United States' failure to act is not only morally dubious, it has engendereď serious anomalies in our foreign policy. President Carter has called human rights "the heart and soul” of that policy. How can this praiseworthy stance be credible when we have not yet formally indicated a willingness to subject our own human rights record to scrutiny under the International Covenants? U.S. law restricts foreign aid to governments exhibiting a consistent pattern of violations of “internationally recognized human rights.” Can we justify these restrictions when the United States itself refuses to be bound by the agreements which give the term "human rights” its most authoritative legal meaning?

Of further concern, U.S. failure to ratify the Covenants means that we cannot participate in the implementation mechanisms which the Covenants provide, most notably the Human Rights Committee established by the Civil and Political Rights Covenant. Thus the United States will play no role in the further refinement of international human rights which will necessarily result as the Covenants are applied.

Moreover, failure to ratify weakens our position in other international forums in which we are participants. The review conference of the Helsinki states which will be held in Madrid in November of 1980 is one such forum. The U.S., of course, signed the Helsinki Accords in 1975, and with the 34 other signatory states set in motion a gradual process designed to curtail governmental abuse of human rights. What role do the Covenants play in this process? Principle VII of the Accords specifically incorporates the Covenants by reference. The United States and cther parties to the Helsinki Final Act agreed to "fulfill their obligations as

« PředchozíPokračovat »