PREPARED STATEMENT OF PROFESSOR THOMAS BUERGENTHAL

Mr. Chairman: My name is Thomas Buergenthal. I hold the Fulbright & Jaworski Professorship at the University of Texas School of Law in Austin and serve as judge of the newly established Inter-American Court of Human Rights, which has its seat in San José, Costa Rica, where I live this year. For the record, I should add that I appear before your Committee as a private United States citizen and do not purport to speak for the Court on which I have the honor to sit. I am most grateful for this opportunity to appear before your Committee. As one who strongly supports United States ratification of the human rights treaties under consideration by your Committee, I am delighted that these hearings are being held.

The subject of my testimony is the American Convention on Human Rights. This treaty was not yet in force in February 1978 when President Carter requested the Senate's consent to ratification. It entered into force a few months later and, as of this moment, has been adhered to by 15 Member States of the Organization of American States (OAS). Among the states which have thus far not ratified the Convention, in addition to the United States, are Argentina, Brazil, Chile, Mexico, Uruguay and Paraguay. Except for the U.S. and Mexico, these are countries which have been repeatedly accused of large-scale violations of human rights. The list of the States Parties to the Convention includes the democratic and the more moderate governments of the Americas, including all members of the Andean Pact, which is emerging as the most influential pro-human rights grouping of the region.

II

In discussing the American Convention and whether the U.S. should ratify it, I believe it would be a mistake to lump this treaty together with the other human rights instruments under consideration by your Committee. The American Convention differs in a number of important respects from the other treaties, and these differences all favor the speedy ratification of the Convention by the U.S. The following considerations are among some of the principal factors supporting this conclusion:

First. Of the four human rights treaties referred to the Senate by the President, the American Convention is the only one which establishes a regional system for the protection of human rights. Membership in the American Convention is limited to the Member States of the Organization of American States, which at this time consists of 27 nations; the system is constitutionally tied to the political, legal and organizational framework of the OAS; and the catalog of rights the Convention proclaims mirrors, for the most part, traditional Western democratic conceptions of civil and political liberties found in our own Bill of Rights and the laws giving effect to it. It should be emphasized, in this connection, that there is general agreement among international human rights experts that regional human rights systems of the type created by the American Convention are more effective in protecting human rights than universal systems. The ideological differences that divide the membership of universal systems, be they established within the framework of the United Nations or its specialized agencies, make enforcement extremely difficult. The smaller size of regional systems and the fact that their members tend, on the whole, to share a common ideology, make regional human rights systems much less vulnerable to destructive politicization. Second. The American Convention, again unlike the other treaties before your Committee, establishes a system for the implementation of the rights it guarantees that relies on judicial and quasi-judicial organs to investigate and adjudicate human rights complaints, thereby assuring greater fairness for governments and individuals alike. The Inter-American Commission and the Inter-American Court of Human Rights have powers very similar to those of the highly successful European Commission and Court of Human Rights which function within the framework of the Council of Europe and served as models for their inter-American counterparts. Although I shall have more to say about the powers of these institutions, it is important to emphasize at this point that the judicial and quasijudicial character of these organs conforms in large measure to Anglo-American conceptions of fairness and beliefs about how to deal with human rights complaints, whether they be domestic or international in character. In other words, the implementation system provided for under the American Convention lends itself much less to politicization and abuse than do other international human rights mechanisms.

Third. Article 28 of the American Convention contains the so-called federalstate clause. Its inclusion in the Convention was sought by the United States to

enable it to adhere to the Convention without thereby effecting a shift to the Federal Government of powers exercised by the States of the Union. The absence of such a clause in other international human rights instruments has in the past served as an argument against U.S. ratification. This same concern no doubt explains the President's proposal to attach a federal-state reservation to the ratification of the two Covenants and the Racial Convention, which lack such a provision. Whether or not one agrees with those who insist on the need for a federal-state clause, its presence in the American Convention resolves whatever real or imagined constitutional obstacles its absence would otherwise pose and thus facilitates U.S. adherence to the American Convention.

Fourth. The special political and economic relations that the U.S. has and seeks to maintain with its neighbors to the south require no elucidation before this Committee. Because of this special relationship, U.S. human rights policies have had a profound and, on the whole, highly beneficial impact on political developments in the Hemisphere, spurring on a gradual shift towards greater democracy and freedom in the region. That special relationship no doubt also explains why these policies have been more effective in the Americas than in any other region of the world. It is equally clear, however, that by remaining outside the growing group of states adhering to the American Convention, the U.S. increasingly risks being viewed as a nation that either never shared or no longer shares a commitment to Hemispheric democratization and solidarity. For how could it be otherwise if in time only the U.S. and the most repressive regimes of the region remain non-parties to the Convention. Rightly or wrongly, the entry into force of the Convention is seen in the Hemisphere as the beginning of a new democratic era-an era that many informed Latin Americans acknowledge the U.S. helped to usher in by encouraging ratification. But any prolonged failure by the U.S. to adhere to the Convention, or, in particular, a decision by the U.S. to ratify one or more of the U.N. human rights instruments now before your Committee while postponing action on the American Convention, would have a serious political impact in the region and significantly weaken cooperation on a wide range of issues not limited only to human rights.

I would therefore respectfully urge, Mr. Chairman, that if your Committee is considering establishing ratification priorities among the four human rights treaties, that the American Convention be ratified first. Such a step would symbolize the commitment of the U.S. to Hemispheric democracy and regional solidarity. It would also help to ensure continued U.S. influence in a part of the world on whicn the U.S. will increasingly have to rely as its traditional political and economic ties with countries in other regions become more tenuous. As the leading democratic power in the OAS, the U.S. simply cannot afford to isolate itself from the Organization's only institutional effort giving credence to the lofty principles which the U.S. has for some years now sought to get the OAS and its Member States to put into practice.

III

The American Convention establishes two organs charged with the enforcement of the rights it guarantees. One is the Inter-American Commission on Human Rights, and the other is the Inter-American Court of Human Rights. The Commission and the Court consist of seven members each. In the case of the Commission, these individuals may be nominated by any OAS Member State. Each OAS Member State, whether or not it has ratified the Convention, may vote in the Commission elections which take place in the OAS General Assembly. But only the States Parties to the Convention have the right to nominate and_participate in the elections of the judges of the Inter-American Court of Human Rights.

These differences in the elections of the Court and the Commission are explained by the fact that the Commission is both a Convention institution and an organ of the OAS. In the latter capacity it retains the powers of its predecessor, the Inter-American Commission on Human Rights, which was established in 1959–60. That body had jurisdiction over all OAS Member States. Since the jurisdiction of the new Commission thus also extends, albeit only for some purposes, to those OAS Members that have not ratified the American Convention, it seemed inappropriate to allow only the parties to the Convention to vote in the Commission elections. The contentious jurisdiction of the Inter-American Court of Human Rights, on the other hand, may be invoked solely by the States Parties to the Convention, which probably explains why only these states have a right to participate in the elections of the judges. But as far as the nationality of the judges is concerned, a national of any OAS Member State, whether or not it has ratified

the Convention, is eligible to be nominated and elected. This rule explains how it was possible for me, a U.S. citizen, to be elected to the Court-I was nominated by Costa Rica-even though the U.S. has not yet ratified the Convention. It is well known that the nomination of an American lawyer by Costa Rica and his subsequent election to the Court reflected the strong hope of the States Parties to the Convention that the U.S. would adhere to the treaty; it also reflected their desire to ensure that the principal legal systems of the region be represented on the new Court. It seems to me that this enlightened attitude augurs well for the future of the Convention and the institutions it establishes. (At the moment, nationals from the following states are represented on the Commission: Brazil, Colombia, Costa Rica, El Salvador, Mexico, United States and Venezuela. The judges of the Court are nationals of Colombia, Costa Rica, Honduras, Jamaica, Peru, United States and Venezuela. The Convention specifies that these individuals shall serve in their private capacities and not as representatives of any state or government.)

The Commission's task under the Convention is to investigate any human rights complaint that it receives, to determine whether it states a prima facie case, to seek a friendly settlement of those complaints that appear to be wellfounded and, if such a settlement cannot be reached, to adopt a report containing its findings and recommendations. A case may normally be referred to the Inter-American Court only after it is gone through all of these stages in the Commission's proceedings.

The American Convention on Human Rights is unique among international human rights instruments in that it makes the right of private petition to the Commission mandatory and the right of inter-state complaints optional. That is to say, under the American Convention the Commission acquires jurisdiction to deal with private complaints lodged against any state as soon as it has ratified the Convention. But inter-state complaints may only be filed by and against those States Parties to the Convention which have deposited the special declaration envisaged in Article 45 of the Convention, recognizing the jurisdiction of the Commission to deal with inter-state complaints. In all other international human rights treaties the right of private petition, if it is recognized at all, is made optional. There is evidence to suggest that the drafters of the American Convention opted for a mandatory right of private petition in the belief that inter-state complaints, unlike private complaints, lend themselves more readily to abuse by governments bent on intervention in the affairs of other governments. Be that as it may, it cannot be doubted that the private petition remedy tends to ensure a more effective international human rights machinery; it is probably also true that the inter-state complaint procedure is capable of political abuse, particularly in those human rights systems where the right of private petition either does not exist or is optional. In his transmittal message, President Carter indicates his intention to recognize the Commission's jurisdiction to act on interstate complaints in accordance with Article 45 of the American Convention. For reasons to be explained below, I believe that such a declaration should only be made if the United States is also prepared to accept the jurisdiction of the InterAmerican Court of Human Rights.

A case, whether or not it originates in a private petition or inter-state complaint, may be referred to the Inter-American Court, provided, however, that the states which are parties to the case have recognized the Court's jurisdiction. That is, a state which ratifies the American Convention is not deemed, ipso facto, to have accepted the jurisdiction of the Court. It has to make a separate declaration to that effect. (Article 62 of the American Convention.) Once a state has made this declaration, the Commission or any other State Party which has filed a similar declaration may refer the case to the Court. The decisions of the Court are final and binding on the parties to the case. The Court has the power to enter a decree in the nature of a declaratory judgment and order the payment of compensation. (Article 63(1) of the American Convention.) In this connection, I should like to call the Committee's attention to the fact that in the President's transmittal message (p. XXII), it is asserted that the Court "may issue temporary or permanent injunctions in all cases concerning the interpretation and application of the provisions of the Convention." A careful reading of the Convention probably does not justify this conclusion as far as the permanent injunction is concerned. This is not to deny that the Court appears to have a very limited poser to issue temporary injunctions under Article 63(2) of the American Convention "in cases of extreme gravity and urgency." I call attention to this matter because a misreading of the relevant language may well influence a government's decision whether to accept the Court's jurisdiction.

Whether or not it has influenced the U.S. Government, I do not know. But the fact remains that in transmitting the American Convention to the Senate, the President did not seek authorization to accept the jurisdiction of the Court. It may be that the President's decision was related to the fact that the Convention was not in force and that the Court did not exist at the time when the Convention was transmitted to the Senate. But these considerations no longer apply, and I would respectfully urge that the United States recognize the jurisdiction of the Court. In the U.N., in UNESCO, in ILO, the U.S. has for years strongly deplored and quite rightly so the politicization of human rights proceedings. Yet when we have an opportunity to take a dramatic step to depoliticize them by giving a judicial organ the final word, the U.S. dramatically opts against depoliticization.

The failure to accept the jurisdiction of the Court and thus to opt for depoliticization is particularly unwise given the OAS context. The unwillingness of the U.S. to submit itself to the Court's jurisdiction will here be viewed as proof that the U.S. sees human rights as an instrument for political intervention and that it is unwilling to submit to impartial international adjudication in which every nation, large or small, is equal. This argument will be buttressed by pointing to the decision of the U.S. to accept the inter-state complaint machinery-with its interventionist potential-while rejecting recourse to the Court, the body least likely to be subject to political pressure. The U.S. and, for that matter, all democratic nations of the Hemisphere have a vital interest in legitimating and depoliticizing the struggle for human rights and human dignity. That result is not only not achieved, it is significantly set back, when a nation such as the U.S., with its long, strong and enlightened legal tradition, finds it politically necessary to avoid submitting to the jurisdiction of a court.

A final point, which bears on the issue of effective implementation, has to do with the President's recommendation that the Senate declare that the American Convention is non-self-executing. It is not for me to argue the question whether such a declaration is valid as a matter of U.S. constitutional law, but I do respectfully submit that it is most unwise, particularly when applied to the American Convention. Such a declaration, if valid, will deprive U.S. courts of the possibility of applying the Convention. American courts and judges have more experience than those of any other nation in the Americas in dealing with human rights cases. They consequently have an important contribution to make to the development of Hemispheric human rights law-a law which U.S. courts, more than any others, would be able to infuse with the enlightened principles reflected in the American constitutional tradition. By making it impossible for American courts to apply the Convention, the U.S. deprives itself of this important opportunity to participate in the Hemispheric lawmaking process.

IV

Mr. Chairman, the American commitment to human rights and human dignity is a foreign policy asset of immense value. For unlike all the differences in material wealth and ideology that separate us as a nation from the rest of the world, our commitment to human rights reflects the shared aspirations and hopes of mankind everywhere. We cannot afford to cut ourselves off from the legal and institutional framework in which these aspirations are beginning to find expression in international fora. It is therefore both in the interest of the U.S. and human rights in general that the U.S. ratify the human rights treaties before your Committee. Senator ZORINSKY. Thank you, Professor Buergenthal. The next witness will be Dr. John Hargrove.

STATEMENT OF JOHN LAWRENCE HARGROVE, DIRECTOR OF STUDIES, AMERICAN SOCIETY OF INTERNATIONAL LAW, WASHINGTON, D.C., AND LECTURER, JOHNS HOPKINS SCHOOL OF ADVANCED INTERNATIONAL STUDIES

Mr. HARGROVE. Thank you, Mr. Chairman. My colleagues dealt in some detail with the international implementation systems of the four treaties before the committee. Consequently I should like to address briefly the question put to the Senate by the President and the

relevance of international implementation of these treaties to that question. That question, of course, is the question of advice and consent to ratification.

I believe it is here, rather than on the point of the effect of these treaties within the United States, that the central policy issue posed by the President's submission arises.

My own view is that the questions that have been discussed in three days of hearings thus far relating to the impact of these treaties in the United States are resolvable, and that the United States can, if it wishes, ratify these treaties without cost to its domestic legal order and with significant, if perhaps modest, benefits.

I hope that these questions, as important as they are, will not obscure what seems to me to be the central policy issue posed by the submission of these treaties.

I would state this central issue as follows: Whether we, as a national society, are willing to bet that broadly multilateral standards respecting the humane conduct of governments with respect to their own citizens, standards which essentially reflect our own values, have any chance of surviving in the sort of world in which we are going to be required to live in the next generation or two-not only to survive, but ultimately to flourish as a permanent and influential fixture on the international system.

Mr. Chairman, the evidence on this proposition, I am afraid we all would have to acknowledge, is, to say the least, mixed. The world confronting us is one which appears to be increasingly fragmented, multipolar, and disordered. It seems to be more frequently harangued by demands on the part of nations to be their own judge in all matters. The results, as we can see even today, range from the disturbing to the hideous.

A fair estimate is that a numerical majority of those wielding effective governmental power in our world at any given time are not merely indifferent to the values embodied in these four treaties, but, in fact, are calculatedly hostile to some of them, certainly to those having to do with political freedoms.

We have to face it. Judged by the standards of human value that are embodied, however imperfectly, in our own national system, the global community of governments has a disturbingly large population of villains and scoundrels, not to mention the occasional nut or murderous fanatic.

Indeed, in such a world the mere existence of these treaties, so broadly subscribed to, is a rather remarkable fact. So far from nitpicking these treaties or other more recent instruments, such as the Helsinki Final Act, because they do not perfectly mirror the concepts of Western liberal democracy, we should marvel that they approach as closely to that ideal as they do.

Mr. Chairman, this brings me to two points which I believe are the nub of the matter. First, if a system of standards, such as those embodied in these treaties, does have a reasonable chance to survive and flourish and to gather strength in the long term, that chance very probably depends directly on our own vigorous participation in the effort.

Second, if we are so to commit ourselves, it is certain that for the foreseeable future we will not find a more promising opportunity than is presented by these treaties, imperfect as they may be. For certainly