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also the rationale behind article 14 paragraph 5 of the Covenant is here sought in the doubling of the number of judges which the Court normally comprises (ten instead of five). The prosecution in such cases is undertaken by the Procurator General to the Supreme Court, who, unlike ordinary public prosecutors, is appointed for life and is thus independent of the Government. "Article 14, paragraph

"It is not clear whether article 14 paragraph 7 lays down only the national or also the international application of the ne bis in idem principle. Under article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles the national application of the principle is guaranteed but there is some limitation to its international application. The Kingdom of the Netherlands states that it does not wish the application of the ne bis in idem principle to extend any further than under article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles as they now apply. "Article 19, paragraph 2

“Article 10 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states expressly that it (the article) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. A provision of this kind is lacking in article 19 of the Covenant, and there may therefore be doubt concerning whether this Article permits such a licensing system. A reservation has therefore been entered to exclude uncertainty on this point. "Article 20, paragraph 1

“It is extremely difficult to formulate a statutory prohibition of propaganda for war in such a way that excessive infringements of the freedom of expression are avoided. A criminal provision would have to be worded so that it related only to the use of armed violence in conflict with international law. The question is then what sort of violence as such is meant, and this question does not appear to lend itself to adjudication by domestic courts. Moreover, trials on this matter would soon take on a political nature, which should be avoided in general. These considerations and the reservation apply only to the Netherlands. “Article 25 (c)

“Article 5 paragraph 3 (e), article 6 paragraphs 3 and 4 and articles 95 and 96 of the Antillean Public Servants' Substantive Law National Regulation contain rules concerning appointment and termination of employment that are less favourable to women than to men. Since these provisions cannot be dispensed with for the time being on economic and social grounds, a reservation has been entered on the matter in the case of the Netherlands Antilles.”

Senator PELL. I would add here that the Lawyers Committee for International Human Rights recently submitted a critique on the reservations proposed by the Department of State. The committee opposed reservations concerning Federal-State jurisdiction and the non-self-executing nature of the treaties.

At this point, without objection, I would submit for the record : copy of this critique. I would ask the Department of State to respond for the record to it.

Mr. OWEN. Certainly, sir. We will.
[The information referred to follows:]
THE LAWYERS COMMITTEE FOR INTERNATIONAL Human Rights,

New York, N.Y.
CRITIQUE OF RESERVATIONS TO THE INTERNATIONAL HUMAN RIGHTS

COVENANTS PROPOSED BY THE U.S. DEPARTMENT OF STATE

INTRODUCTION

In the coming months the United States Senate will consider ratification of several international treaties dealing with human rights. These treaties were signed by President Carter and transmitted to the Senate on February 23, 1978. They were accompanied by a State Department Letter of Submittal dated Decem. ber 17, 1977.

The State Department's Letter proposed that the Senate attach to the Covenants certain reservations, declarations, and understandings, a number of which

we believe would be inappropriate and undesirable. In this critique, we offer i specific reactions to the State Department proposals regarding the International

Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the two principal comprehensive agreements. Our comments should also be considered in connection with the other agreements submitted.

The critique has two parts. The first part presents some general observations regarding the State Department's position and the American attitude towards 5 ratification. Part Two focuses on the specific provisions contained in Deputy Secretary of State Warren Christopher's December 1977 Letter of Submittal.

We note at the outset that it is the responsibility of the Executive Branch, in the first instance, to determine whether the United States should modify a treaty with reservations, declarations, or understandings. The Executive Branch should also be prepared to recommend against Senate ratification of a treaty, if the Senate insists on inappropriate alterations.

The purpose of this critique is to assist the Executive Branch in reconsidering these proposals. We recognize that it is the Executive Branch which is in the best position to conduct a systematic provision-by-provision evaluation of each treaty.

I. GENERAL COMMENTS

The reservations proposed by the Executive Branch reflect three principles. They are: (1) that the United States would not commit itself to do anything that would require change in present law or practice; (2) that the treaties shall not be self-executing, but shall require implementation by legislation; and (3) that subjects which are within the jurisdiction of the states would be excluded from the obligation of the treaties or at least left to implementation by the states.

We believe that the three bases of reservation are undesirable, if not improper in principle. Principle One, the notion that the United States would undertake to do only what it is already doing, is anomalous. It has even been suggested that as a general, blanket principle, such a reservation would be invalid, because it is incompatible with the object and purpose of the treaty.

The purpose of treaties is to undertake new obligations, in this case to conform U.S. behavior to the international standard. The mere fact that a treaty provision makes a change is not a reason for a reservation. If a particular change is unacceptable on its merits, then a reservation should be entered. One reservation (to Article 20) may be required by the Constitution. One or another change the United States may not be prepared to promise. But there ought to be no general reservation to change.

The second principle of reservation is also undesirable. Some provisions in the Covenants, by their character or by their clear import, are not self-executing, and will require implementation by Congress. Others, however, will not, and these can and should be given effect by Executive act or by the courts. There is no reason for insisting that neither the Executive nor the courts should give effect to a treaty until Congress adopts legislation. That would undermine one of the principal reasons why the Constitution made treaties the law of the land, and gave the President and the Senate the power to make such treaties without the consent of the House of Representatives.

The "states' rights reservation” is confusing and unnecessary. There are few, if any, matters covered by the human rights covenants that are subject exclusively to state jurisdiction. Under the fourteenth amendment and other Constitutional provisions, these matters are now subject to the legislative power of Congress and the jurisdiction of the federal courts.

Perhaps the reservation is intended to provide that the obligations of the covenants may in some cases be implemented by the states rather than by the federal government. If so, a reservation is unnecessary. Under international law, the United States is free to carry out its obligation by whatever agencies it sees fit, as long as they are carried out. If there is a desire to emphasize that, clearer and more appropriate language can be found.

II. ANALYSIS OF SPECIFIC PROVISIONS

A. International Covenant on Civil and Political Rights.

I. ARTICLE 5, PARAGRAPH (1)-PROHIBITS DEROGATION OF Rights THAT ARE ALREADY PRESENT IN Domestic Law.

A. Proposed Executive Branch Reservation:

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“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."

B. Comments: 1. The proposed reservation is unnecessary. Article 5 of the Covenant provides:

1. “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitations to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext than the present Covenant does not recognize such rights or that it recognizes them to a lesser extent."

Nothing in the Covenant, then, can be construed or used to restrict freedom. The reference to protections of speech by "laws and practice” is unclear, and “'practice” in particular is highly uncertain. If a particular clause seems clearly to restrict a right, e.g. Article 20 prohibiting certain publications, that should be dealt with specifically. See VII below.

C. No reservation or understanding is necessary or desirable.

II. ARTICLE 6-LIMITATION ON CIRCUMSTANCES IN Which CAPITAL PUNISH. MENT MAY BE IMPOSED.

A. Proposed Executive Branch 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.”

B. Comments:

1. The proposed reservation is objectionable. Its purpose can only be to reserve the right to execute pregnant women, or children under 18. It would make the United States position seem ridiculous.

2. Reserving future laws goes even beyond the principle of the reservation not to require change in existing practice.

3. In fact, accepting this article without any reservation would have very little effect on current United States practice.

C. No reservation or understanding is necessary or desirable.
III. ARTICLE 9 PARAGRAPH (5)—GRANTS VICTIMS OF UNLAWFUL ARREST OR
DETENTION AN ENFORCEABLE RIGHT TO COMPENSATION.

A. Proposed Executive Branch Reservation:
"The United States does not adhere to Paragraph (5) of Article 9.
B. Comments:

1. According to Deputy Secretary of State Christopher's letter of submittal, this provision “goes beyond current federal law.” That is not an appropriate basis for a reservation.

2. Under United States law today, victims of unlawful arrest or detention have some rights to compensation in some circumstances under 42 U.S.C. § 1983; see also Bivens v. Six Unknown Named Agents, 403 U.S. 388, 399 (1971). But United States law is inadequate in this respect and the Covenant would require the United States to enact additional federal or state law to meet the international standard. The change, however, is desirable and would not impose undue burdens on the United States or on the states.

C. No reservation or understanding is necessary or desirable.
IV. ARTICLE 10-ESTABLISHES STANDARDS FOR THE TREATMENT OF PRISONERS.

(1) Paragraph (2) (a) requires the separation of accused from convicted; (2) (b) requires separation of adults from juveniles.

(2) Paragraph (3) provides that the penitentiary system is to "comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation."

A. Proposed Executive Branch 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."

This statement is included because “practice and policy in the United States prisons does not fully accord with these standards."

B. Comments:

1. The provisions of Article 10 reflect worthwhile policies. The United States is in essential compliance with the requirement of Article 10(3) which presumably means that the goals of the penitentiary system should include, inter alia, reform and social rehabilitation. U.S. prison policies are directed in part toward these goals.

2. The separation of prisoners may call for the expenditure of additional funds and small communities in particular may have difficulty in complying.

C. Proposed Substitute Language:

“The rights enumerated in Article 10(2) cannot be achieved immediately by certain communities in the United States, particularly small towns and counties with limited prison facilities and resources. For these communities the rights guaranteed by Article 10(2) will be achieved progressively, although as expeditiously as possible.

V. ARTICLE 14-ESTABLISHES STANDARDS FOR THE CONDUCT OF TRIALS INCLUDING THE Rights: To Be PRESUMED INNOCENT; To A FAIR AND PUBLIC HEARING; TO COUNSEL, INCLUDING COURT APPOINTED COUNSEL; TO A SPEEDY TRIAL; TO PROTECTION AGAINST RETRIAL FOR THE SAME OFFENSE (DOUBLE JEOPARDY).

A. Proposed Executive Branch Understanding:

The Executive Branch notes that “it is possible to read all of the requirements contained in Article 14 as consistent with United States law, policy and practice.' Nonetheless, it proceeds to advise that “the Senate may wish to record its understanding of certain provisions in that article as follows:

"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 judge ment 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.

B. Comments:
1. It most respects the proposed understanding is unnecessary.

2. The comment on the double jeopardy provision implies that successive prosecutions by federal and state courts may be permissible. That indeed was held by the Supreme Court in narrow decisions in Abbate v. United States, 359 U.S. 187 (1959). and Bartkus v. United States, 359 U.S. 121 (1959). However, Supreme Court decisions since 1959, such as Benton v. Maryland, 359 U.S. 784 (1969), suggest that successive state and federal prosecutions are now viewed with considerable disfavor. In any event, there is no reason why the U.S. should not now adopt this position by convention and make the change required by the international standard.

C. No reservation or understanding is necessary or desirable.

VI. ARTICLE 15(1)—This PROVISION Bars CONVICTION FOR Ex Post Facto CRIMINAL OFFENSES. IT Also PROHIBITS HEAVIER PENALTIES FROM BEING IMPOSED THAN THOSE APPLICABLE WHEN THE OFFENSE WAS COMMITTED. THE THIRD CLAUSE ALLOWS AN OFFENDER TO BENEFIT FROM A CHANGE IN THE LAW Which REDUCES THE PENALTY FOR THE OFFENSE COMMITTED.

A. Proposed Executive Branch Reservation:

"The United States does not * * * to the third clause of paragraph (1) of Article 15."

This provision refers to the imposition of a reduced penalty for certain offenses. According to Mr. Christopher's letter, “this right is often granted in practice in the United States, but is not required by law.”

B. Comments:

1. The fact that the practice is not now required by law is not a proper reason for refusing to require it by treaty.

2. Wbile it may require changes in some state practice, that would be desirable reform consistent with the concepts of American criminal justice.

C. No reservation or understanding is necessary or desirable.

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VII. ARTICLE 20—PROHIBITS “ANY PROPAGANDA FOR WAR” AND “AND ADVOCACY OF NATIONAL, RACIAL OR RELIGIOUS HATRED THAT CONSTITUTES INCITEMENT TO DISCRIMINATION, HOSTILITY OR VIOLENCE.

A. Proposed Executive Branch 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 by the United States, which would restrict the right of free speech protected by the Constitution, laws and practice of the United States."

B. Comments:

1. The proposed reservation, or an understanding to the same effect, is desirable and probably necessary, to take account of Constitutional issues. However, the reference to U.S. laws, and particularly to U.S. practice, is uncertain in its meaning and scope and is undesirable.

C. The proposed language should be retained with the deletion of the words "laws and practice.”

VIII. ARTICLE 47—STATES That "NOTHING IN THE COVENANT SHALL BE INTERPRETED AS IMPAIRING THE INHERENT RIGHT OF ALL PEOPLES TO ENJOY AND UTILIZE FULLY AND FREELY THEIR NATURAL WEALTH AND RESOURCES."

A. Proposed Executive Branch Declaration:

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

B. Comments:

1. This declaration is unnecessary because it states the obvious, but there is no objection to stating the obvious in this case.

C. The proposed language is not objectionable.

IX. ARTICLE 50-PROVIDES THAT THE COVENANT Shall EXTEND TO ALL PARTS OF FEDERAL STATES WITHOUT ANY LIMITATIONS OR EXCEPTIONS.

A. Proposed Executive Branch 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 from the fulfillment of this Covenant."

B. Comments:

1. The administration's language is unclear and confusing. The "subject matter" over which the Federal government exercises jurisdiction, and over which con. stituent units exercise jurisdiction is not defined and cannot meaningfully be defined. By almost any definition both the Federal government and the States exercise jurisdiction over the "subject matter "of every provision of the Covenant. See introductory comment above, p. 4.

2. Neither the proposed language, nor any variation on it, is constitutionally necessary. Federal authority in this area is clear. Missouri v. Holland, 252 U.S. 416 (1919).

3. Under the Constitution and International Law, the Federal government has the responsibility and the authority to carry our obligations under the Covenant. Although the Federal government has the ultimate responsibility to see that these obligations are carried out, it can leave some implementation to the States as long as the United States sees to it that it is done. Č. Proposed Language:

No such provision is necessary or desirable. At most, the following might be declared.

"The United States will implement its obligations under this Covenant by legislative, executive and judicial means, federal or state, as appropriate.”

X. GENERAL RESERVATION-PROVIDES THAT AS REGARDS ARTICLES 1 THROUGH 27, THE TREATY is NON-SELF-EXECUTING.

A. Proposed Executive Branch Reservation:

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

B. Comments: 1. This reservation is not constitutionally required. It will unnecessarily delay U.S. compliance with some provisions and set up unnecessary political obstacles to U.S. compliance generally.

2. Many articles will in fact require Congressional implementation, but some might not. Determination of what is or is not self-executing should be made article by article, after careful examination of the language.

C. No reservation or understanding is necessary.

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