INTERNATIONAL HUMAN RIGHTS TREATIES

MONDAY, NOVEMBER 19, 1979

UNITED STATES SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 9:35 a.m., in room 4221, Dirksen Senate Office Building, Hon. Edward Zorinsky presiding. Present: Senators Zorinsky and Javits.

OPENING STATEMENT

Senator ZORINSKY. Good morning.

Today the Senate Committee on Foreign Relations convenes for the fourth and final day to review the four international human rights treaties.

During the hearing this morning, we will hear testimony from three distinguished panels of experts and from Ambassador Donald McHenry.

Because of time constraints, I must ask that all the witnesses limit their oral testimony to no more than 7 minutes. More extensive testimony can be submitted for the record.

At this point I would like to welcome the first panel of witnesses who will discuss the treaties with an emphasis on their implementation systems. I welcome Prof. Richard Lillich, whose plane has been delayed, I understand. He will join the panel upon his arrival from the University of Virginia Law School. I also welcome Dr. John Lawrence Hargrove, Director of Studies of the American Society of International Law; Prof. Oscar Garibaldi of the University of Virginia Law School; and Prof. Thomas Buergenthal of the University of Texas Law School. Professor Buergenthal also is a judge on the InterAmerican Court of Human Rights. The last member of the panel is Mr. Jerome Shestack of the International League for Human Rights in New York.

Would you all please come up to the witness table and be seated. We thank you all for appearing here this morning to enter your testimony.

Let us begin at the far end of the table. Mr. Garibaldi, we would be happy to have you lead off. We will go right down the table for subsequent statements.

[Professor Garibaldi's biographical sketch follows:]

BIOGRAPHICAL SKETCH OF PROF. OSCAR M. GARIBALDI

Address: 11616 Milbern Drive, Potomac, Md.

Professional experience: Lecturer, University of Virginia Law School (1979- ). Subjects: International Law: Selected Problems; Philosophy of Law. Admission to the Bar: District of Columbia: Admitted, January 1979.

Written work: "[Human Rights Policy]: Looking Ahead", Harvard Law School Bulletin, Winter 1979, pp. 36-40. "The General Clauses of the Human Rights Covenants" (provisional title), to be published as part of a larger work on the ratification of the Human Rights Covenants by the United States, sponsored by the American Society of International Law. "The Legal Status of General Assembly Resolutions: Some Conceptual Observations", Proceedings of the American Society of International Law, 1979.

PROFESSIONAL EXPERIENCE

Project Director, Ford Foundation Grant (1978-1979): A one-year research and writing project at the Havard Law School, designed to produce a comprehensive study in book form of the general limitations clauses of human rights declarations and treaties. Other activities: Panelist in the 1978 International Law Week-End; Member and Rapporteur of the A.S.I.L. Working Group on Ratification of Human Rights Treaties by the United States.

Senior Human Rights Specialist, Inter-American Commission on Human Rights (August-September 1978): Resigned in order to undertake the project mentioned above.

Visiting Assistant Professor of Law, Cornell Law School (1976–1978): Subjects: International Law, United Nations Law, International Protection of Human Rights, Legal Philosophy, General Theory of Law. Participated in several professional and academic conferences and workshops, among them the 1977 AALS Law Teaching Clinic.

Summer Associate, LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C. (1976): Practice involved mostly contract law and administrative law.

Research Assistant (part time), Harvard Law School (1975-1976): Assistant to Prof. Roger D. Fisher (International Law) and to Prof. Arthur von Mehren (Comparative Law).

Teaching Assistant (part time). University of Buenos Aires Law School (1973– 1974): Subjects: Introduction to Law, Constitutional Law II, Philosophy of Law. Partner (previously Associate), Garibaldi, Garibaldi & Garibaldi, Buenos Aires (1971-1974): General non-criminal practice. Emphasis on litigation, bankruptcy and labor law, international business transactions, and radio and television regulation. Law Clerk to Oscar M.A. Garibaldi, Esq. 1969-1971).

ADMISSION TO THE BAR

District of Columbia: Bar examination taken in July 1978. Results not yet available. Buenos Aires, Argentina: Admitted to practice before the courts of the city of Buenos Aires and the Federal courts, 1973.

EDUCATION

Harvard Law School: Candidate to the degree of Doctor of Juridical Science (S.J.D.). Residence completed (1975-1976). Courses: mostly first-year courses of the J.D. program. Dissertation subject is same as that of Ford Foundation project. Degree expected in 1979. Academic performance: Four A's, one A minus, one B plus. Activities: International Law Society, judge in Jessup and Ames competitions. Harvard Law School, LL.M., 1975: Academic performance: Three A pluses, two A's, one B plus, one B. First place in U.N. Law course.

University of Buenos Aires Law School: Candidate to the degree of Doctor of Law and Social Sciences (Specialization in International Law and Jurisprudence). First year of residence completed (1973). Activities: Associate Member of the Argentine Society of Philosophical Analysis; member of the Asociacion de Abogados de Buenos Aires; Assistant Editor, Asociacion de Abogados de Buenos Aires Law Review.

University of Buenos Aires Law School, Procurador (LL.B.), 1971; Abogado (J.D.), 1972: Academic performance: Diploma de Honor; general grade average: 9.50 on a 0-10 scale; fourth place in a class of 623. Academic awards: Law Review (one of the six members of the Board of Editors, Lecciones y Ensayos Law Review); "Sobresaliente Felicitado" (a special grade given in exceptional cases, numerically equivalent to 10, which entails a special congratulation by the examination panel) in Constitutional Law I and in Constitutional Law II. Activities: Member of the M.U.C. (University Centrist Movement).

University of Buenos Aires, Colegio Nacional de Buenos Aires, Bachiller, 1964: A six-year program with emphasis on the Humanities, the Classics, and Social

Sciences. Academic performance: First place in the class (ap. 240 students); grade average in 1963: 10 points on a 0-10 scale. Academic awards: Bearer of the Flag (highest honor); four awards (gold medals and diplomas) to the highest general grade average, and to the highest grade averages in History, Latin, and Physics and Chemistry; Scholarship to the highest general grade average in the academic year 1963.

WRITTEN WORK

"General Limitations on Human Rights: The Principle of Legality", 17 Harvard International Law Journal 503-557 (1976)

"Exclusive Jurisdiction and Discretionary Rights: The Scope of the Reserved Domain in the Emerging Law of the Sea," Cambridge, 1976. Manuscript in the Harvard Law Library. Will be revised and published when the III UNCLOS arrives at a final text.

"The Carter Doctrine on Human Rights: Questions of Law and Questions of Policy". Paper read at a joint meeting of two committees of the Association of the Bar of the City of New York in June 1977. Serves as a basis for a larger work in progress.

Two reports on legal issues relating to the ratification of human rights treaties by the United States, June 1978.

"On Rules and Principles". Forthcoming.

"Dualidad", Collage, Spring 1965, p. 57. Essay (fiction), awarded the First Prize in a literary competition, University of the Pacific, Elbert Covell College, 1965.

FELLOWSHIPS

The first Rómulo Gallagos Fellowship, instituted by the Inter-American Commission on Human Rights to sponsor advanced studies on human rights. (Only one such fellowship is awarded each year) (1974-1975). Fellowship by Harvard University, to sponsor the S.J.D. residence (1975-1976). Grant by the Ford Foundation, described above.

LANGUAGES

English and Spanish: excellent speaking, reading, and writing. French: excellent reading and oral comprehension; non-fluent speaking. Italian and Portuguese: excellent reading and oral comprehension. German and Latin: reading with dictionary.

REFERENCES

Prof. Roger D. Fisher; Prof. Louis B. Sohn; Prof. Abram C. Chayes; Prof. Richard R. Baxter, Harvard Law School, Cambridge, Mass.; Eugene R. Fidell, Esq., LeBoeuf, Lamb, Leiby & MacRae, 1757 N Street, N. W., Washington, D.C.; Dean Roger D. Cramton; Prof. Robert S. Summers; 2nd Prof. Ian R. Macneil, Cornell Law School, Ithaca, N.Y.

PERSONAL

Born on June 22, 1946 in Buenos Aires, Argentina. Status in the U.S.: Permanent Resident. Married to the former Norma L. Blomqvist; one daughter. Excellent health.

STATEMENT OF OSCAR GARIBALDI, PROFESSOR, UNIVERSITY OF VIRGINIA LAW SCHOOL, CHARLOTTESVILLE, VA.

Mr. GARIBALDI. Thank you, Mr. Chairman.

I have a prepared statement which I shall partly read and partly summarize. I trust it will be inserted into the committee record in its entirety.

Senator ZORINSKY. Yes; it will.

Mr. GARIBALDI. I am very grateful to the committee for this opportunity to present my views about ratification of the human rights treaties by the United States.

In this testimony, I shall express conditional support for the ratification of the American Convention and the Covenant on Civil and Political Rights, and outright opposition to the Covenant on Eco

nomic, Social, and Cultural Rights. I wish to reserve my opinion about the Convention on the Elimination of All Forms of Racial Discrimination.

I propose briefly to discuss the implementation systems of the three treaties and, second, the reasons of substance which support the conclusions just stated.

Since international law contains no implementation procedures of general applicability, the system adopted by a treaty, any treaty, is of great importance, particularly because it serves as a gage of the seriousness with which the state parties view their commitments and the probable effectiveness of the treaty as a whole.

In the special case of the human rights treaties, the implementation procedures are even more consequential. The language in which the human rights treaties are drafted is extremely general, highly vague, and often ambiguous. The precise boundaries of the rights in question depend on indeterminate concepts, such as general welfare, ordre public, public interest, and the like. Therefore, the rights to be protected and, hence, the substantive obligations of the state parties will be dictated in large measure not so much by the texts now before the Senate, but by the interpretations made by the implementing organs.

Judging a system of implementation is like judging the strength of a fortress: It depends not only on how well the bastions are designed, but also on how well they are manned. This suggests that we should take a hard look not merely at the legal procedures established by the treaties, but especially at the likely composition of those bodies which ultimately will determine the scope of our international duties.

In this double sense, the system of implementation set up by the European Convention on Human Rights, by far the best, represents a standard of excellence which we cannot ignore in evaluating the treaties before the Senate.

To summarize the rest of my statement on this part, Mr. Chairman, I believe that the procedure of the American Convention, which is the closest one on paper to that of the European Convention, has the greater potential to become a meaningful system for the implementation of human rights, a system which will make a difference.

On the other hand, I am very skeptical about the effectiveness of the procedures established by the covenants in terms of making a difference in the behavior of states. However, I have no doubt that all of these procedures ultimately are going to result in a body of practice which is going to be taken as fundamentally important to determine the meaning of the treaties.

This is why we should be aware of the impact that the composition of these organs is going to have. In this sense we should remember that the principle of equitable geographical distribution, which applies to the Human Rights Committee insures the presence of members from totalitarian countries.

Let me now summarize the reasons why I conditionally support two treaties and unconditionally oppose the third. I support the American Convention and the Covenant on Civil and Political Rights only if the United States makes a number of reservations, not necessarily those proposed by the administration, designed to make these treaties compatible with some basic principles of American law and foreign policy. The reasons for my support of these two treaties are the following.