RESERVATIONS BEING PROPOSED TO TREATIES Senator PELL. I know you are more familiar than I am with the three echelons of sanctity of an understanding, a reservation, and an amendment. As I interpret it, an understanding is a unilateral statement, a reservation is a unilateral statement that officially is drawn. to the attention of the negotiating party, and an amendment requires actual renegotiation of the document. As I understand it, reservations are being proposed here. This means that each country party to the treaty will have to be officially apprised of our reservations. Is that not correct? Mr. OWEN. They will be apprised of our reservations and they will have an opportunity to make their views known with respect to those reservations. If they, in effect, acquiesce and accept them, then those reservations become a part of our treaty obligation, modify our treaty obligation. If they do not agree with our reservations and feel sufficiently strongly about it, they can refuse to become a state party with us. We then do not have an arrangement with such a state. Senator PELL. How do we notify them-by circular diplomatic note? Mr. OWEN. I believe that the instrument of ratification would contain all of the reservations, and as these documents were deposited with and circulated by the U.N. and OAS, states thereby would become informed as to what our reservations were. Senator PELL. But I do not believe we exchange these documents with each nation. Do we? Mr. OWEN. I am not sure. Senator PELL. I don't think so. Mr. Goldklang, do you know? Mr. GOLDKLANG. Upon advice and consent, we would deposit our instrument of ratification, including our understandings and reservations, with the appropriate depository. In this case it would be the OAS or the United Nations, as appropriate. Under the law of treaties, no distinction is made as to reservations and understandings. Both would be circulated to the other parties by the depository. Some parties might choose to interpret an understanding as really being a reservation. There is a gray area between the two. Each party can then accept or reject the reservations and understandings and decide whether to be in treaty relations with us. If they decide to reject a particular reservation, the particular article does not apply as between the countries. If they accept it, the article, in effect, is rewritten on a reciprocal basis to include the reservation. "REJECTING TREATY RELATIONS" Senator PELL. For the sake of argument, if Tonga took exception and was a signatory party, this would then mean that the convention would be in effect between us and all the signatory nations except for Tonga. Is that correct? Mr. GOLDKLANG. If they merely took exception to a particular reservation, then the convention would be in force as between the United States and that country, except for the one article where they 55-159-80 rejected the reservation. However, if they felt that the cumulative effect of the reservations was incompatible with treaty relations, they could go so far as to say they simply reject treaty relations with us. This is a possibility, though I think it is an extreme one. Senator PELL. When you say "treaty relations," do you mean this particular treaty relation and not all treaty relations? Mr. GOLDKLANG. That's right; just the particular treaty. Mr. GOLDKLANG. Well, I would like to consult with the Assistant Legal Adviser for Treaty Affairs. Mr. OWEN. Mr. Chairman, Mr. Arthur Rovine, who has greater experience in this, probably could answer your question. Senator PELL. Mr. Rovine, would you please come forward. Mr. ROVINE. It has happened, Senator, but it is very rare. It is more likely to happen as between other nations than with us. Very often, it depends on entirely political considerations. For example, Arab nations, when becoming a party to these multilateral conventions, often say that it creates no legal relationships. among them and Israel, and there will be no treaty relationship among them. This is entirely political in nature and not because of any specified reservation. I cannot recall, in our experience in recent years, any reservation that we have submitted to a multilateral treaty which has caused another nation to reject treaty relationships with us because of the particular reservation. In the overwhelming number of cases, other nations simply remain silent. They have 1 year, under the law of treaties, to respond. If, within a year, they have not responded, that is taken as acceptance. In most cases, the year goes by without any response of any kind. I might add also that the Western European democracies which have become party to these treaties themselves have submitted long lists of reservations and understandings, and, in fact, nobody has objected to them to this time. Senator PELL. But silence is not always acquiescence, is it? We have learned that in dealing with the Soviets in SALT I. Mr. ROVINE. Yes, Senator, except that in the case of a multilateral treaty, the law requires 1 year's time in which to respond and if there is no response within 1 year, then the nation which has had the opportunity to respond, but has not, has accepted. In this case, silence is taken as acquiescence. Senator PELL. How many years have you been in your present job? Mr. ROVINE. Four years, sir. Senator PELL. In your experience during these 4 years, you do not recall, then, an instance where a nation has said that treaty relations in connection with a particular article will not apply because of the reservation of the United States or another nation? Mr. ROVINE. That's correct with respect to the United States. Senator PELL. Would you research that point for the record for us, going back a few years, say since World War II? We would extend the record to accommodate you in this, if necessary. Mr. ROVINE. Certainly. [The information referred to follows:] Research in the records of the Office of Treaty Affairs has uncovered no instance since World War II in which the formulation of a treaty reservation by the United States has caused another nation to reject relations in the United States in connection with that treaty. In fact, we could find in our records no example of another nation ever registering strong objection to a reservation made by the United States. As far as reservations by other states are concerned, our records unfortunately are inadequate to determine whether such instances have occurred. A number of Western European countries have made extensive reservations to the two Human Rights Covenants, and no objections have yet been registered thereto. Attached, by way of example, are the reservations to the Civil and Political Rights Covenant by Finland, Italy, and the Netherlands. "1. With respect to article 9, paragraph 3, of the Covenant Finland declares that according to the present Finnish legislation the administrative authorities may take decisions concerning arrest or imprisonment, in which event the case is taken up for decision in court only after a certain time lapse; "2. With respect to article 10, paragraph 2(b) and 3, of the Covenant, Finland declares that although juvenile offenders are, as a rule, segregated from adults, it does not deem appropriate to adopt an absolute prohibition not allowing for more flexible arrangements; "3. With respect to article 13 of the Covenant, Finland declares that the article does not correspond to the present Finnish legislation regarding an alien's right to be heard or lodge a complaint in respect of a decision concerning his expulsion; "4. With respect to article 14, paragraph 1, of the Covenant, Finland declares that under Finnish law a sentence can be declared secret if its publication could be an affront to morals or endanger national security; "5. With respect to article 14, paragraph 3(d), of the Covenant, Finland declares that the contents of this paragraph do not correspond to the present legislation in Finland inasmuch as it is a question of the defendant's absolute right to have legal assistance already at the stage of preliminary investigations; "6. With respect to article 14, paragraph 7, of the Covenant, Finland declares that it is going to pursue its present practice, according to which a sentence can be changed to the detriment of the convicted person, if it is established that a member or an official of the court, the prosecutor or the legal counsel have through criminal or fraudulous activities obtained the acquittal of the defendant or a substantially more lenient penalty, or if false evidence has been presented with the same effect, and according to which an aggravated criminal case may be taken up for reconsideration if within a year until then unknown evidence is presented, which would have led to conviction or a substantially more severe penalty; "7. With respect to article 20, paragraph 1, of the Covenant, Finland declares that it will not apply the provisions of this paragraph, this being compatible with the standpoint Finland already expressed at the 16th United Nations General Assembly by voting against the prohibition of propaganda for war, on the grounds that this might endanger the freedom of expression referred in article 19 of the Covenant." ITALY Upon ratification: Article 9, paragraph 5 The Italian Republic, considering that the expression "unlawful arrest or detention" contained in article 9, paragraph 5, could give rise to differences of interpretation, declares that it interprets the aforementioned expression as referring exclusively to cases of arrest or detention contrary to the provisions of article 9, paragraph 1. Article 12, paragraph 4 Article 12, paragraph 4, shall be without prejudice to the application of transitional provision XIII of the Italian Constitution, respecting prohibition of the entry into and sojourn in the national territory of certain members of the House of Savoy. Article 14, paragraph 3 The provisions of article 14, paragraph 3 (d), are deemed to be compatible with existing Italian provisions governing trial of the accused in his presence and determining the cases in which the accused may present his own defence and those in which legal assistance is required. Article 14, paragraph 5 Article 14, paragraph 5, shall be without prejudice to the application of existing Italian provisions which, in accordance with the Constitution of the Italian Republic, govern the conduct, at one level only, of proceedings instituted before the Constitutional Court in respect of charges brought against the President of the Republic and its Ministers. Article 15, paragraph 1 With reference to article 15, paragraph 1, last sentence: "If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby", the Italian Republic deems this provision to apply exclusively to cases in progress. Consequently, a person who has already been convicted by a final decision shall not benefit from any provision made by law, subsequent to that decision, for the imposition of a lighter penalty. Article 19, paragraph 3 The provisions of article 19, paragraph 3, are interpreted as being compatible with the existing licensing system for national radio and television and with the restrictions laid down by law for local radio and television companies and for stations relaying foreign programmes. Upon ratification: Reservations "Article 10 NETHERLANDS "The Kingdom of the Netherlands subscribes to the principle set out in paragraph 1 of this article, but it takes the view that ideas about the treatment of prisoners are so liable to change that it does not wish to be bound by the obligations set out in paragraph 2 and paragraph 3 (second sentence) of this article. "Article 12, paragraph 1 "The Kingdom of the Netherlands regards the Netherlands and the Netherlands Antilles as separate territories of a State for the purpose of this provision. "Article 12, paragraphs 2 and 4 "The Kingdom of the Netherlands regards the Netherlands and the Netherlands Antilles as separate countries for the purpose of these provisions. "Article 14, paragraph 3(d) "The Kingdom of the Netherlands reserves the statutory option of removing a person charged with a criminal offence from the courtroom in the interests of the proper conduct of the proceedings. "Article 14, paragraph 5 "The Kingdom of the Netherlands reserves the statutory power of the Supreme Court of the Netherlands to have sole jurisdiction to try certain categories of persons charged with serious offences committed in the discharge of a public office. "Article 14, paragraph 7 "The Kingdom of the Netherlands accepts this provision only insofar as no obligations arise from it further to those set out in article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles as they now apply. They read "1. Except in cases where court decisions are eligible for review, no person may be prosecuted again for an offence in respect of which a court in the Netherlands or the Netherlands Antilles has delivered an irrevocable judgement. "2. If the judgement has been delivered by some other court, the same person may not be prosecuted for the same offence in the case of (I) acquittal or withdrawal of proceedings or (II) conviction followed by complete execution, remission or lapse of the sentence. "Article 19, paragraph 2 "The Kingdom of the Netherlands accepts the provision with the proviso that it shall not present the Kingdom from requiring the licensing of broadcasting, television or cinema enterprises. "Article 20, paragraph 1 "The Kingdom of the Netherlands does not accept the obligation set out in this provision in the case of the Netherlands. "Article 25 (c) "The Kingdom of the Netherlands does not accept this provision in the case of the Netherlands Antilles. Declarations "The Kingdom of the Netherlands] clarify that although the reservations [. . . ] are partly of an interpretational nature, [it] has preferred reservations to interpretational declarations in all cases, since if the latter form were used doubt might arise concerning whether the text of the Covenant allows for the interpretation put upon it. By using the reservation-form the Kingdom of the Netherlands wishes to ensure in all cases that the relevant obligations arising out of the Covenant will not apply to the Kingdom, or will apply only in the way indicated. "Article 10 "Convicted prisoners serving an actual sentence of less than three months as a rule serve it in a House of Detention. As it is not feasible at present to have very short sentences served only in prisons, a reservation must be entered concerning the provisions of article 10 paragraph 2 (a). "Since the provisions in question were drawn up, major changes have taken place in opinions on the treatment of prisoners; it is increasingly thought that there is a need for a selection criterion based on personality rather than on age. The Kingdom of the Netherlands does not wish to cut itself off from this development by binding itself to the provisions of article 10 paragraph 2 (b) and paragraph 3 (second sentence). “Article 12, paragraphs 1, 2 and 4 "The Kingdom of the Netherlands, a party to the Covenant, consists constitutionally of the countries of the Netherlands and the Netherlands Antilles. "Admission and residence are regulated differently in these two countries. The Kingdom of the Netherlands wishes to establish beyond doubt that article 12 does not imply that legal residence in one of the countries confers a right of entry to the other. "Article 14, paragraph 3 (d) "Legislation of the Kingdom of the Netherlands in general accords with the principles set out in this article regarding the treatment of persons against whom criminal proceedings have been instituted. "On some points, however, the provisions of this legislation do not accord with the precise wording of part of this article. "The provision of article 14 paragraph 3 (d) that everyone must be tried in his presence is also a principle in the legislation of the Kingdom, but there are some exceptions. Under article 292 of the Code of Criminal Procedure of the Netherlands the presiding judge of the court may order a witness to be heard in the absence of the person charged with a criminal offense, provided the person charged is informed immediately of what has taken place in his absence; under article 303 a person charged with a criminal offense who disturbs the silence or order of the court and is warned by the presiding judge to no avail may be removed; under article 304 questions concerning the mental faculties of the person charged may be dealt with in his absence; and under article 500j questions concerning the personality or living conditions of the person charged may be dealt with in his absence. "The Code of Criminal Procedure of the Netherlands Antilles contains provisions to the same effect. The Kingdom of the Netherlands takes the view that these provisions facilitate the proper administration of justice and they should therefore be retained. "Article 14, paragraph 5 "The principle of article 14 paragraph 5 that everyone convicted of a criminal offence must have the right to have his conviction and sentence reviewed by a higher tribunal is also found in the legislation of the Kingdom. Serious offences committed in the discharge of a public office by a specific small group of persons with governmental responsibilities, however, under article 178 of the Constitution are judged by the Supreme Court of the Netherlands as the tribunal having sole jurisdiction. The safeguarding of the individual's rights under the law, which is |