ཉེས་

of the Covenants which are self-executing, this reservation seems to be redundant, because those provisions are automatically incorporated into domestic law, and, hence, must be implemented by state and federal authorities (in particular the courts) within their respective areas of jurisdiction, except, of course, to the extent that they are inconsistent with the Constitution or a later Act of Congress.

With regard to those provisions which are non-self-executing, the situation seems to be more complex. In the absence of the reservation, those provisions may be implemented (a) by conforming state or federal law already in force; (b) by new state legislation if such legislation is the valid exercise of state powers (or jurisdiction) under the Constitution; or (c) by new federal legislation, pursuant to Congress' power to implement valid treaties.21 It is not clear whether Congress is obligated under the Constitution (as opposed to the United States under international law) to implement a valid non-self-executing treaty.22 But even if Congress has such a duty in principle, it is reasonable to except those cases in which the treaty is already implemented by independently valid state law. The best view then would be that, in those cases, Congress is empowered, but not required, to pass implementing legislation.

Assuming that the distinction made in the reservation between federal and state subject-matter jurisdiction rests on constitutional provisions other than those that confer the treaty power, and that Congress' power to implement the Covenants is, under the Constitution as interpreted in Missouri v. Holland, more extensive than such federal jurisdiction, the reservation may be seen as an attempt to renounce such extra jurisdiction.23 In other words, if the reservation were valid under municipal law, it would operate as a waiver or renunciation of the amount of Congress' jurisdiction representing the difference between its jurisdiction to implement the Covenant (under Missouri v. Holland) and the federal jurisdiction alluded to in the reservation. In my view, this waiver is not permissible under the Constitution, because the constitutional distribution of competences can only be altered by the amendment process, and because the Senate cannot, in any case, renounce internal powers which pertain to Congress as a whole. Now, it may be said, the reservation is not meant to operate as a waiver, but rather as a non-binding declaration that the Federal Government does not intend to exercise the portion of jurisdiction in question. But then the reservation would be devoid of legal effects, either internationally or under municipal law. I am sure that this domestic political point could be made in another way, without using the reservation process.

Let us now turn to the second alternative, i.e., that the reservation operates to reject those treaty obligations whose subject matter belongs to state jurisdiction. From the point of view of municipal law, this case presents no particular difficulties. In the case of non-self-executing provisions, they would have to be implemented by existing or new federal legislation, but such legislation would fall, by hypothesis, within the area of federal jurisdiction envisioned by the reservation.

The proposed reservation is not required by the Constitution nor is it demanded by the national interest. As the preceding discussion shows, it raises very serious questions of international as well as domestic law, and, depending on how it is interpreted, may well violate one system or the other. In my view, it should not be adopted.

V. THE COVENANTS AND THE RIGHT TO PRIVATE PROPERTY

The right to private property is not guaranteed in either the Covenant on Civil and Political Rights or the Covenant on Economic, Social and Cultural Rights. By itself, this omission carries no implication: in principle, these treaties do not regulate the conduct of a State Party with regard to the property of individuals subject to its jurisdiction. Besides, under both Articles 5(2) of the Covenant, a fundamental human right recognized in a State Party "in virtue of law, conventions, regulations or custom" may not be restricted or derogated from on the pretext that the Covenant does not recognize it or that it is recognized to a lesser extent. In my view, as indicated by Article 17 of the Universal Declaration of Human Rights, the right to private property is a fundamental human right. Consequently, Article 5(2) would apply to the right to private property of aliens (based on customary international law) and to the right to private property of everyone, the latter to the extent that it has been recognized in national law or in other treaties, such as the American Convention.

Notwithstanding this, two other provisions, which appear with identical wording in both treaties, have a bearing on the question of expropriation without compensation. The first is paragraph 2 of Article 1 in both Covenants; the second occurs as Article 47 in the Covenant on Civil and Political Rights, and as Article 25 in the Covenant on Economic, Social and Cultural Rights. To simplify, I shall refer to these provisions, respectively, as Article 1(2) and Article 47/25. These two articles were drafted at different times and reflect two widely divergent ideological positions: the first, that expropriation of alien property (among other matters) should accord with international law; the second, that it should only be subject to national legislation. In an effort to reconcile these two articles, I suggest that they be read literally, distinguishing between the disposition of natural wealth and resources (Article 1(2)) and the enjoyment and utilization of them (Article 47/25). Accordingly, a people has a right fully and freely to enjoy and utilize its natural wealth and resources-which is compatible with private, and even foreign, ownership-but it may only dispose of such resources (including expropriation) in accordance with international law.

I am aware, of course, that this literal interpretation probably runs counter to the intent of the sponsors of Article 47/25. As a matter of fact, Article 1(2) and 47/25 have already been interpreted in the sense of leaving the issue of compensation exclusively to domestic law, on the grounds that such is the intent of Article 47/25 (which, by its terms, supersedes all other provisions of the treaty), or, alternatively, that Articles 1(2) and 47/25 must be interpreted in accordance with the Charter of Economic Rights and Duties of States, which effectively subjects expropriations to the jurisdiction of the expropriating State.24 Given the composition of the organs charged with the international implementation of the Covenants, I fear that this view may well prevail.

Whichever interpretation is correct, it is imperative, in my view, to adopt an appropriate reservation or statement of understanding. This is so because Article 47/25 does not merely have the negative function of a disclaimer-let us recall that the treaties do not guarantee the right to private property in the first placebut also the positive function of recognizing an "inherent right of all peoples" which may be interpreted to include the taking of property without compensation. A reservation or statement of understanding may be based on one or more of three ideas: (a) the right to private property, as defined in Article 17 of the Universal Declaration, (b) the principle of compensation in accordance with international law, and (c) the principle of prompt, adequate and effective compensation. The first alternative has the advantage of including the property of nationals, as well as aliens, and the disadvantages derived from the vagueness of the word "arbitrarily," used in paragraph 2 of Article 17, as well as the limitations provided for in Articles 29 and 30 of the Declaration. The second alternative contains an open reference to international law, which will probably vary with changes in the latter.25 The third has the advantage of reaffirming the traditional United States position with regard to the customary standard of compensation. The best solution, in my view, would be to produce a statement of understanding combining a reference to all three ideas. This could be done by modifying, in the following way, the text proposed by the Executive:

"The United States understands that nothing in this Covenant derogates from the equal obligation of all states to fulfill their responsibilities under international law, including the payment of prompt, adequate and effective compensation for the expropriation of foreign property. The United States further understands that nothing in this Covenant is inconsistent with the provisions of Article 17 of the Universal Declaration of Human Rights."

This statement would conclusively eliminate any suggestion that by ratifying the treaty the United States would (a) undertake international obligations which are incompatible with the right to private property guaranteed in the Universal Declaration, or (b) assent to the claim that under customary international law it is permissible to take foreign property without compensation, or (c) agree, in the treaty itself, to a treaty rule to the same effect. The proposed statement should be adopted with regard to both Covenants, whether or not a further reservation is made, as will be proposed below, in relation to Articles 1(2) and 47/25. It should be remembered, however, that I am ultimately opposed to the ratification of the Covenant on Economic, Social and Cultural rights, with or without reservations.

24 Charter of Economic Rights and Duties of States, Resolution 3281 (XXIX) of the U.N. General Assembly, GAOR, 29th Session, Supplement No. 31, Article 2(2)(c) (1975).

25 I shall not discuss here the standard of compensation required by international law. But whatever it is, it is of course not immutable.

In this section I shall briefly state my preliminary views about the reservations, understandings and declarations proposed by the Executive and not dealt with in the preceding sections. The purpose of the following discussions is not so much to analyze those proposals in detail, as to clarify the conditions under which I have expressed support for the ratification of the Covenant on Civil and Political Rights. As to the Covenant on Economic, Social and Cultural Rights, although it would be improved by some of the proposed texts, I still believe that, all things considered, it does not merit ratification by the United States.

The general criterion applied by the Executive to formulate the proposed reservations, understandings, or declarations was to prevent the undertaking of international obligations which may be in conflict with the United States Constitution, or with existing municipal law. This criterion goes beyond constitutional requirements, however, because the Constitution forbids the undertaking of international obligations which are in conflict with the Constitution itself, but not those which are in conflict with other laws or practices. It has been recently argued that the fact that the specific reservations proposed are the result of this criterion may well make them inconsistent with the object and purpose of the treaty, and therefore invalid.26 Whether or not this criterion would lead to invalid reservations, it is, in my opinion, excessive. The proper general criterion is the one formed by constitutional requirements, the merits of the treaty provisions at issue, and the national interest.

A. International covenant on civil and political rights

1. Reservation: "The Constitution of the United States and Article 19 of this Covenant contain provisions for the protection of individual rights, including the right of free speech, and nothing in this Covenant shall be deemed to require or to authorize legislation or other action by the United States which would restrict the right of free speech protected by the Constitution, laws, and practice of the United States."

A reservation to this effect is indispensable, but the proposal just quoted should be redrafted to include an express reference to other constitutional rights and to eliminate the reference to the "laws and practice" of the United States. I propose the following wording:

"The United States adheres to this Covenant only to the extent that it does not require or authorize legislation or other action by the United States which would restrict or impair the rights and freedoms protected by the Constitution of the United States, including the rights of free expression, assembly, and association." 2. Reservation: "The United States reserves the right to impose capital punishment on any person duly convicted under existing or future laws permitting the imposition of capital punishment."

This proposed reservation should not be adopted. There is nothing in Article 6 which is inconsistent with the Constitution. The only immediate effect of this reservation would be apparently to preserve the ability of the United States to execute pregnant women and persons under the age of eighteen. The merits of this principle are hardly worth discussing.

3. Reservation: "The United States does not adhere to paragraph (5) of Article 9 or to the third clause of paragraph (1) of Article 15.

The provisions affected by the proposed reservation contain just principles, quite consistent with the mandates of the Constitution. Consequently, the proposal should not be adopted. As a second choice, the United States may wish to record an understanding that the right to compensation for unlawful arrest need not be enforceable against public funds. A possible wording is the following: Statement: "The United States understands that the right to compensation mentioned by paragraph 5 of Article 9 need not consist in compensation from public funds."

4. Statement: "The United States considers the rights enumerated in paragraphs (2) and (3) of Article 10 as goals to be achieved progressively rather than through immediate implementation."

A proposal to this effect is desirable, because the segregation of prisoners (accused from convicted; juvenile from adult) depends for its implementation on the facilities and resources of each community. On the question of the aims of the

25 See Oscar Schachter, "The Obligation of the Parties to Give Effect to the Covenant on Civil and Political Rights," American Journal of International Law, vol. 73, p. 462-465 at 465 (1939).

penitentiary system and the treatment of prisoners, I believe it unwise, as a matter of social policy and national interest, to make a final commitment to what can be regarded as a narrow philosophy of punishment, particularly at a time when such philosophy is being subject to serious questioning. In my view, the proposal should be redrafted in the following way:

(a) Reservation: "The United States reserves the right to treat the provisions of paragraphs (2) and (3) of Article 10 relating to the segregation of accused persons from convicted persons, and of juvenile persons from adults, as goals to be achieved progressively, rather than through immediate implementation."

(b) Statement: "The United States understands that the first sentence of paragraph 3 of Article 10 does not preclude the adoption of other essential aims for the penitentiary system in general and the treatment of prisoners in particular." 5. Statement of understanding: "The United States understands that subparagraphs (3) (b) and (d) of Article 14 do not require the provision of court-appointed counsel when the defendant is financially able to retain counsel or for petty offenses for which imprisonment will not be imposed. The United States further understands that paragraph 3(e) does not forbid requiring an indigent defendant to make a showing that the witness is necessary for his attendance to be compelled by the court. The United States considers that provisions of United States law currently in force constitute compliance with paragraph (6). The United States understands that the prohibition on double jeopardy contained in paragraph (7) is applicable only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, which is seeking a new trial for the same cause."

I have no opinion with regard to the first three classes of this proposal. With respect to the last clause, it is designed to preserve an unjust principle. In my view, at least the last clause of this statement should not be adopted.

6. Declaration: "The United States declares that the right referred to in Article 47 may be exercised only in accordance with international law."

The problems to which this declaration is addressed have already been discussed. If the statement of understanding which I have proposed in section V is adopted, this declaration will be unnecessary. I shall later propose a more extensive reservation affecting Article 47 (infra, Section VI). I support the proposed declaration only as a second choice.

7. Reservation: "The United States shall implement all the provisions of the Covenant over whose subject matter the Federal Government exercises legislative and judicial jurisdiction; with respect to the provisions over whose subject matter constituent units exercise jurisdiction, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Covenant."

This text has been discussed in Section IV.

8. Declaration: "The United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing."

This proposal has been analyzed in Section III.

B. International covenant on economic, social, and cultural rights

1. Statement: "The United States understands paragraph (1) of Article 2 as establishing that the provisions of Articles 1 through 15 of this Covenant describe goals to be achieved progressively rather than through immediate implementation." This statement of understanding would more precisely constitute a reservation, for it clearly aims at changing the character of some provisions (notably Article 8) which call for immediate implementation.27 A question arises whether the obligation to take steps (Article 2, para. 1) would itself become a goal to be achieved progressively. There are good reasons to believe that submitting the principle of progressive implementation itself to progressive implementation would be contrary to the object and purpose of the treaty. With this caveat, which would require a slight reduction in the scope of the text, this reservation is desirable.

2. Declaration: "The United States declares that nothing in the Covenants derogates from the equal obligation of all States to fulfill their responsibilities under international law. The United States understands that under the Covenant, everyone has the right to own property alone as well as in association with others, and that no one shall be arbitrarily deprived of his property."

This issue has been discussed in Section V. It should be noted here that it is incorrect to say that the right to own property exists "under the Covenant", since the Covenant is silent on the matter.

17 See Appendix.

3. Statement: "The Constitution of the United States and Article 19 of the International Covenant on Civil and Political Rights contain provisions for the protection of individual rights, including the right to free speech, and nothing in this Covenant shall be deemed to require or to authorize legislation or other action by the United States which would restrict the right of free speech protected by the Constitution, laws, and practice of the United States."

For the reasons stated above, (A.1), the following reservation should be adopted instead of the proposed statement:

Reservation: "The United States adheres to this Covenant only to the extent that it does not require or authorize legislation or other action by the United States which would restrict or impair the rights and freedoms protected by the Constitution of the United States, including the rights of free expression, assembly, and association."

4. Reservation: "The United States shall progressively implement all the provisions of the Covenant over whose subject matter the Federal Government exercises legislative and judicial jurisdiction; with respect to the provisions over whose subject matter constituent units exercise jurisdiction, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Covenant."

This proposal has been analyzed in Section IV, above.

5. Declaration: "The United States declares that the provisions of Article 1 through 15 of this Covenant are not self-executing."

This text has been discussed in Section III.

C. American Convention on Human Rights

1. Declaration: "The United States declares that the provisions of Articles 1 through 32 of this Convention are not self-executing."

This issue has been discussed in Sections II and III above.

2. Reservation: "United States adherence to Article 4 is subject to the Constitution and other law of the United States."

This proposed reservation represents two areas of potential conflict: abortion and the death penalty. With respect to the first, the U.S. delegation interpreted the second phrase of Art. 4(1) as reserving to State Parties "discretion with respect to the content of legislation in the light of their own social developments, experience and similar factors".28 Although the import of that second phrase is far from clear, there are indications in the travaux preparatoires that this text was not egarded as prohibiting lawful abortions. In any event, I consider it preferable to clarify this matter by a reservation, or a statement of understanding, and thus remove the controversy over abortion from the international plane.

While it would be unconstitutional to prohibit abortions absolutely,29 it would not be unconstitutional to abolish the death penalty. I believe, however, that this latter question should be dealt with in much the same fashion as that suggested above. A carefully-worded reservation may remove from the treaty the areas of greater political controversy, and preserve for the United States the desired freedom of action. Such a reservation, however, must not extend to provisions which are consistent with agreed policies and shared values, if not always with the letter of the law. With respect to paragraph 4, I consider it undesirable on its merits, because of the vagueness of the expression "political offenses or related common crimes".

Therefore, I consider the proposed reservation too broad. In its stead, I should propose the following:

(a) Statement: "The United States understands that the second sentence of paragraph 1 of Article 4 does not apply to lawful abortions."

(b) Reservation: "The United States does not adhere to the last sentence of paragraph 2, paragraph 3, or paragraph 4 of Article 4."

3. Statement: "The United States considers the provisions of paragraphs (4) and (6) of Article 5 as goals to be achieved progressively rather than through immediate implementation, and, with respect to paragraph (5), reserves the right in appropriate cases to subject minors to procedures and penalties applicable to adults."

This text should take the form of a reservation, rather than a statement of understanding. The segregation of prisoners depends on the facilities and resources of each community. On the other hand, the institution of special juvenile courts

2 Donald T. Fox, "The American Convention on Human Rights and Prospects for United States Ratification", Human Rights, vol. 3, pp. 243-281 (1973). Roe v. Wade, 410 U.S. 113 (1973).