procedural rights of the accused to a fair trial, to representation by counsel, and other procedural rights.12 Each treaty requires that the States Parties respect the enumerated rights without discrimination as to race, sex, national origin, or other status.13 Special importance attaches to article 4 of the Covenant which addresses t to the need to distinguish, in accordance with internationally agreed standards, between emergencies that warrant reasonable derogations from the Covenant's : requirements and unwarranted claims of emergency, and between those rights from which reasonable derogation is permissible and those from which no derogation is allowed. In the latter category are such fundamental rights as freedom from torture, from slavery and from retroactive application of statutes defining criminal offenses.

Unlike its partner covenant, the International Covenant on Economic, Social and Cultural Rights looks not to the recognition of present rights, but to the future. It commits States to take steps towards the future realization of certain economic, social and cultural goals for the individual, much as many of our domestic enactments and policy statements look towards aspirational goals of full employment, universal health care, and the like. Article 2 requires that ratifying States undertake "to take steps *** with a view to achieving progressively the full realization of the rights recognized in the present Covenant." These rights include the right to work, and to enjoy just and fair conditions of work; 14 the right of social security, 15 to the enjoyment of a high standard of health,16 and to an adequate standard of living; 17 the right to the protection of the family and of children; 18 and the right to primary education.19

The desirability of realizing these rights is clear, and in keeping with policies fostered in the United States for some fifty years at least. It is worth reiterating that no ratifying party thereby commits itself to the present implementation of these rights. Nor does any party commit itself to distribute the benefits foreseen by the Covenant to individuals directly. Rather, the Covenant obliges governments to work towards the eventual achievement of the minimum standards it sets out. To emphasize that this constitutes an obligation to promote rather than an immediate legal commitment to perform, the Administration has suggested appending a declaration to this effect.

All four of these treaties contain provisions for their enforcement. There are four essential ways by which implementation of these treaty rights may be overseen. First, common to the Racial Discrimination Convention, the Economic and Social Rights Covenant and the Civil and Political Rights Covenant is a reporting procedure requiring States Parties to submit reports on the measures they have adopted to give effect to the rights recognized in the treaties. These three treaties call for such reports within one year of their entries into force and periodically thereafter. The reports required by the Economic and Social Rights Covenant are to be submitted to the Economic and Social Council of the United Nations through the Secretary General; those required by the Racial Discrimination Convention and the Civil and Political Rights Covenant are to be submitted, again through the Secretary General, to independent Committees established by the treaties. The Committee on the Elimination of Racial Discrimination and the Human Rights Committee each contain 18 members who are persons of "high moral standing" and "character" and competence, elected by secret ballot from nominees by States Parties, and who act in an individual capacity. The American Convention reconstitutes a similarly independent seven member Commission called the Inter-American Commission on Human Rights. The respective bodies reviewing the reports are authorized by the treaties to make general comments based upon examinations of the reports.

The second route of implementation consists of an inter-state complaint and conciliation procedure. Under the Racial Discrimination Convention each_State Party subjects itself to the inter-state procedure, but under the Civil and Political Rights Covenant and the American Convention a State Party does not so subject itself unless it makes a declaration to that effect. Such a declaration would state that the State Party recognizes the competence of the appropriate independent committee to receive and examine allegations from other States Parties

12 Civil and Political Covenant, arts. 14 and 15; American Convention, arts. 8 and 9. 13 Civil and Political Covenant, art. 2; American Convention, art. 1.

14 Arts. 6 and 7.

15 Art. 9.

16 Art. 12.

17 Art. 11.

18 Art. 10. 19 Art. 13.

that it is not fulfilling its obligations under the treaty. The appropriate Committee or Commission is authorized to examine the complaint and to issue reports with non-binding recommendations. The Economic and Social Rights Covenant has no comparable provision for inter-state complaints and conciliation procedures. The third type of implementation procedure allows individuals and groups to lodge complaints with the appropriate Commission or Committee against States Parties to the treaties. Under the Racial Discrimination Convention a State Party subjects itself to such complaints only if it makes a declaration to that effect; under the Civil and Political Rights Covenant a State would be so subject only if it ratifies an optional protocol. The American Convention provides that any individual, group, or organization may lodge complaints of violations by States Parties; submission to this procedure is not optional for a ratifying State.. The Economic and Social Rights Covenant contains no comparable provision. The fourth and last means of implementation is set forth only in the American. Convention: that is, judicial proceedings before the Inter-American Court of Human Rights. This court, composed of seven judges elected in an individual capacity, has jurisdiction to hear cases submitted by States Parties and the Commission only if the inter-state complaint procedures described above have already been completed, and only if the States Parties involved have declared themselves subject to the court's jurisdiction. This court provides the only enforcement mechanism that would produce decisions legally binding the States Parties concerned.

As is evident from a summary of the substantive provisions of these four treaties, they do not concern themselves solely with the behavior of one State toward another. One of their principal objects and purposes is to subject the behavior of a government toward its people to international legal scrutiny, not generally, but only where that behavior does not meet certain minimum standards of justice and humanity as reflected in the treaties. As Deputy Secretary Christopher has pointed out, the United States has always striven to conform its treatment of those under its jurisdiction to our constitutional standards and the processes of law; on the whole, we do for our own citizens what the drafters of these treaties contemplated as necessary for the citizens of all countries. But because these treaties do concern themselves with the relations between governments and individuals rather than solely with those between States, objections have been raised to them. It is feared by some that these treaties could be used to distort the constitutional legislative standards that shape our federal and our state governments' treatment of individual within the United States. These criticisms deserve response.

Such objections tend to fall into three categories. First, it is said that the human rights treaties could serve to change our laws as they are, allowing individuals in courts of law to invoke the treaty terms where inconsistent with domestic law or even with the Constitution. The second type of objection is that the treaties could be used to alter the jurisdictional balance between our federal and state institutions. Since these first two objections will be addressed during these hearings by the Department of Justice, I will go into them only briefly. The third type of objection is that the relationship between a government and its citizens is not a proper subject for the treaty-making powers at all, but ought to be left entirely to domestic legislative processes. This last point I shall address in somewhat more detail.

As others have noted, the treaties do diverge from our domestic law in a relatively few instances. Critics fear that this divergence will cause changes in that domestic law outside the normal legislative process, or at least will subject the relations between the government and the individual to conflicting legal standards. This fear is not well-founded, in our judgment, for two reasons. First, the President has recommended that to each of the four treaties there be appended a declaration that the treaties' substantive provisions are not self-executing. A treaty is self-executing, and thus automatically the law of the land upon entry into force, or non-self-executing, requiring implementing legislation before it becomes a rule for the courts, depending upon its terms and the intention of the parties adhering to it.

It is the Administration's view that the treaties are, on their face, and according to their terms, not self-executing and thus are not enforceable directly by the courts. A Senate declaration would simply clarify the intention of the United States in this regard. This does not mean that vast new implementing legislation is required, as the great majority of the treaty provisions are already implemented in our domestic law. It does mean that further changes in our laws will be brought about only through the normal legislative process. This understanding

as to the non-self-executing nature of the substantive provisions of the treaties would not derogate from or diminish in any way our international obligations under the treaties; it touches only upon the role the treaty provisions will play in our domestic law.

A second reason why we need not fear a confusion of standards due to possible conflicts between the treaty provisions and domestic law rests in this Administration's recommended reservations and understandings. In the few instances where it was felt that a provision of the treaties could reasonably be interpreted to diverge from the requirements of our constitution or from federal or state law presently in force, the Administration has suggested that a reservation or understanding be made to that provision. In our view, these reservations do not detract from the object and the purpose of the treaties—that is, to see to it that minimum standards of human rights are observed throughout the world-and they permit us to accept the treaties in a form consonant with our domestic legal requirements. As I have previously noted, a second objection raised by critics to the ratification of these human rights treaties is that they might upset the existing allocation of jurisdiction between our federal and state institutions. Some of these critics feel that certain matters addressed in the treaties lie exclusively within the jurisdiction of the several states within our federal system and that subjecting these matters to regulation by treaty or by congressional legislation will infringe upon that state jurisdiction.

Although most of the matters dealt with in the treaties are governed by federal law at this juncture in our history, the Administration is sensitive to this concern. We have therefore recommended a reservation to the Racial Discrimination Convention and the two Covenants, stating that the United States shall implement the treaty provisions over whose subject matter the federal government exercises jurisdiction, and shall encourage state authorities to take appropriate measures with regard to the provisions over whose subject matter the States exercise jurisdiction. The content of this reservation is already built into Article 28 of the American Convention. There need be no apprehension that the ratification of the human rights treaties will invade the field of those matters which are properly left to states jurisdiction.

The third objection that has been raised is that the subject matter of these treaties lies beyond the scope of the treaty-making power. The text of the Constitution, of course, gives no guidance as to what may or may not be the subject of a treaty. The Supreme Court has said a number of times that "[t]he treatymaking power of the United States is not limited by any express provision of the Constitution, and, though it does not extend 'so far as to authorize what the Constitution forbids,' it does extend to all proper subjects of negotiation between our government and other nations." (Asakura v. Seattle, 265 U.S. 341 (1923); Geofroy v. Riggs, 133 U.S. 258, 266 (1899); Ware v. Hylton, 3 Dall. 199 (1796)). Although the Court has not elaborated upon what a "proper subject of negotiation" might or might not be, it has come to be commonly accepted that the treaty power extends to any "matter of international concern." See Restatement of Foreign Relations Law. (§ 40, comment b at 117 (1965))

Although there have in the past been differences of opinion as to what is and is not a matter of "international concern," it seems clear today that no matter how widely or narrowly the boundaries of "international concern" be drawn, a treaty concerning human rights falls squarely within them. States have entered into such treaties since the 17th century. For example, in 1648 the Treaty of Westphalia established the principle of equality of rights for those of the Catholic and Protestant religions. The Congress of Vienna in 1815, and the Congress of Berlin in 1878 both provided for the free exercise of religion by individuals. Numerous treaties in the 19th century had as their goal the suppression of the slave trade; the U.S. became party to one of them in 1862. The peace treaties in central Europe following the First and Second World Wars assured protection of life and liberty to all inhabitants without regard to birth, nationality, language, race, or religion and included provisions for the protection of minorities. In the twentieth century, the United States has become party to a number of treaties that address the rights of the individual as against his government, including international labor conventions, the constitution of the International Labor Organization, the 1926 Slavery Convention, the 1945 peace treaties, the UN Charter, and, more recently, the Supplementary Convention on Slavery in 1967 and the Convention on the Political Rights of Women in 1976. The United States is party to the Charter of the Organization of American States, which addresses the economic and social rights of the individual, and we are of course party to the United Nations Charter, under which members are pledged to take action

to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." (Articles 1, 55, 56.) The growth of a United Nations system of reporting, review, and treaty making arising from this provision-touching on matters from terrorism to the status of refugees-reflects a universal judgment that human rights are properly a matter of international concern and foreign policy interest.

A reporter's note to the Second Restatement of Foreign Relations Law states in part as follows:

"Proposed treaties dealing with human rights have raised questions in the U.S. and, indeed, in other countries as to whether or not they deal with matters that are appropriate for settlement by agreement between nations *** Although such conventions generally specify standards already observed in the U.S., it has an interest in seeing that they are observed by as many states as possible, not merely to protect its own standards, but to promote conditions abroad that will foster economic development and democratic institutions that are conducive to prosperity in the U.S. and achievement of its foreign policy objectives. It cannot effectively urge other states to adhere to such conventions without doing so itself." (Restatement (Second) of Foreign Relations Law, § 118, Reporter's note at 375).

In sum, it seems now beyond dispute that human rights are properly a matter of international concern.

Thus far I have discussed criticisms heard from opponents of ratification of these treaties on human rights. Let me turn now to criticisms heard from supporters of ratification. Some of these supporters-including some of the treaties' most distinguished proponents-are critical of what they perceive as the Administration's efforts to insulate our own domestic system from the impact of the human rights treaties' terms by means of reservations. It is asserted that the essential object or purpose of these human rights treaties is to change the domestic law of the ratifying States in order to conform with the precise dictates of the treaties' terms. That being the case, it is said, the Administration's recommended reservations violate the purposes of the treaties because the reservations are designed to harmonize the treaties' requirements with our existing domestic law.

We think it appropriate to suggest, however, that these critics have not fully appreciated the purpose of these human rights treaties. The primary objective is the fostering of international commitments to erect and observe a minimum standard of rights for the individual as set forth by the treaties. This standard is met by our domestic system in practice, although not always in precisely the same way that the treaties envision. By ratification, we would commit ourselves to maintain the level of respect we already pay to the human rights of our people; we would commit ourselves not to backslide, and we would be subjecting this commitment and our human rights performance as a whole to international scrutiny.

Our main goal in suggesting the reservations that I have described is thus not to evade the minimum standards imposed by the treaties whenever they touch our system. The rationale behind the reservations is, rather, that we take our international legal obligations seriously, and therefore will commit ourselves to do by treaty only that which is constitutionally and legally permissible within our domestic law. In this respect, it should be noted, we are in good company. This has been the approach taken by other countries who share with us the democratic traditions from which these treaties derive their content. Specifically, a number of western European countries have appended extensive substantive reservations to these treaties. I might add that the European Convention for the Protection of Human Rights, which is similar to the Civil and Political Covenant in content, explicitly provides for the making of reservations to allow participating countries to make their international commitments by treaty consistent with their domestic legal systems. At least five nations have availed themselves of this opportunity. Another reason why the Administration has proposed a number of reservations, understandings and declarations is pragmatic. We believe these treaties to be important and necessary, and we are anxious to secure the advice and consent of the Senate to their ratification It is our judgment that the prospects for securing that ratification would be significantly and perhaps decisively advanced if it were to be clear that, by adopting these treaties, the United States would not automatically be bringing about changes in its internal law without the legislative concurrence of the federal or state governments.

Let me turn to a brief examination of how enforcement of the treaties has proceeded in practice up to this time, for that will give some indication as to whether ratification would unduly expose the United States to unwarranted or unfair attack pursuant to the treaties.

The reporting procedures for the Racial Discrimination Convention and the Civil and Political Rights Covenant have thus far been the principal enforcement mechanisms. The Committee on the Elimination of Racial Discrimination has been meeting to consider reports submitted by States Parties since 1970, the Committee on Human Rights since 1977. Each has begun to build its own set of practices and procedures in that time.

The Racial Discrimination Committee requires the States Parties to submit an itemized account of the "legislative, judicial, administrative or other measures” adopted with regard to each of the substantive obligations of the Convention. The Committee has no independent fact-finding authority, but in practice Committee members have also gathered outside information in their capacity as "experts." The utilization of such additional information has given the Committee the opportunity to raise meaningful questions as to a State's claim to compliance.

The Racial Discrimination Committee has never issued a formal determination of non-compliance with the Convention in response to a State's report. On the other hand, it has invited each State Party to send a representative to reply to questions of the Committee as it considers the State's report, and this practice has given the Committee the opportunity to convey to that State its opinion that compliance with the Convention's obligations is unsatisfactory, albeit without issuing a formal ruling to that effect. The attendance of a State representative affords the State a forum in which its practices in the area of discrimination can be directly defended against deserved or undeserved attack. (There is no provision for cross-examination of the answers to Committee questions given by these representatives.)

The system I have just described has generally worked fairly towards those whose compliance has been questioned. On a few occasions, however, particular States have attempted to use the Committee to further other political aims. For example, in two cases a reporting State has used its report on its own compliance with the Convention as a way of charging another country, not party to the Convention, with human rights violations; in one of those cases the United States was the wrongly charged party. Not being a party to the Convention, however, the United States had no opportunity to refute the charges before the Committee through a State representative of its own choosing or to question the competence of the Committee to address what was in substance an inter-state complaint through the reporting procedure.

The Committee on Human Rights, charged with implementing the Civil and Political Rights Covenant, also avoids formal rulings against States and makes use of State representatives' appearances, just as does the Racial Discrimination Committee. In its shorter history the Human Rights Committee has managed to steer clear of political confrontation, and the questioning of all State representatives, whether from the developing world, Eastern Europe or Western Europe, has been uniformly tough and searching. British treatment of prisoners in Northern Ireland has come in for severe criticism as have Soviet restrictions on freedom of movement. The Committee members are taking seriously their position as impartial, independent jurists. Although its record is still quite brief, the Committee appears to have great potential for shaping attitudes toward and the language of human rights standards as they develop over time; participating countries, through their reports, their responses to questioning, and through the individuals they nominate to serve as members will have the opportunity to have a hand in such future development.

The conclusions we draw from the early practice of the implementing committees are two-fold. First, to the extent that they remain impartial mechanisms for the monitoring of States' compliance with the human rights treaties, as they largely have been so far, the United States would do well to participate and thus have a role in the development of an international jurisprudence of human rights. Second, to the rare extent that the committees do lapse into political confrontation, the United States cannot afford not to be represented, so as accurately to set forth its human rights record.

The United States has historically maintained a strong tradition of commitment to the cause of the rights of the individual at home and abroad. The ratification of these four treaties before this Committee today would provide a mechanism for upholding this fine tradition internationally. President Carter has described these treaties as "a beacon- a guide to a future of personal security, political freedom, and social justice." In order to enhance our contribution to the achievement of such a future, I urge this Committee to report favorably on these treaties. Senator PELL. Thank you very much, Mr. Owen. Ms. Derian, we are happy to hear from you now.