I think these new institutions are important in promoting the progressive development of international law in this area, and we should do what we can to promote their realization in the world.

a

Mr. Chairman, the second point I briefly want to mention is that the American Bar Association believes that the ratification of these four treaties, with the understandings, reservations, and declarations recommended, would be fully consistent with the Constitution of the United States, would fully be consistent with the State-Federal system, and would be something that would be consistent with the overall domestic law of the United States.

From time to time arguments have been raised that perhaps we ought not adhere to these treaties because of some legalism or some supposed inconsistency with the U.S. Constitution, and, provided that there is a clear understanding and reservation in those areas where there may be inconsistency, we feel that certainly there is no valid reason whatsoever not to sign the treaties on that basis. I might add that this is an area where the American Bar Association can speak with particular authority that with these understandings and reservations it is our judgment that there is no inconsistency with the Constitution of the United States or the principle of federalism.

Mr. Chairman, third I would make just a brief comment on the one additional understanding offered by the American Bar Association to those of the administration. This is an understanding offered to article 6 of the Civil and Political Covenant, which would read: "The United States' adherence to article 6 concerning the right to life is subject to the Constitution and other laws of the United States."

Mr. Chairman, this simply would track the reservation already proposed by the administration to article 4 of the American Convention and simply would make abundantly clear, perhaps taking a cautious approach here, something which certainly is the intent of the administration. It would be perfectly consistent with what we are doing in the American Human Rights Convention.

I might add that this is not something that is an intervention on the merits of the subject matter itself, but rather is a provision that is designed to protect fully the constitutional guarantees offered under the American Constitution. It is completely consistent with what the administration has sought to do throughout the ratification process to make certain that we are consistent in reservations and understandings with the U.S. Constitution.

The last point I would like to discuss very briefly, Mr. Chairman, simply because I understand some questions already have been raised in this area, is that concerning the possible need for an amendment, reservation, or something going beyond the understanding offered by the administration with respect to the right of property.

The American Bar Association is recommending the ratification with the understandings, declarations, and reservations of the administration with only the one addition made, and this is the right-to-life clarifying amendment or understanding which I have just discussed. It is not supporting any additional understandings or amendments in this case.

Let me speak for a moment to the merits of that issue.

The question already is dealt with in the American Convention, specifically in article 21 of that convention, which protects the right of property. It is the interpretation of the United States, as expressed in an understanding of the administration, that the Economic, Social,

and Cultural Covenant also means that everyone has the right to own property alone as well as in association with others. This is an expressed understanding recommended by the administration and concurred in by the American Bar Association which is based on an interpretation of paragraph 2 of article 2 and of article 25 of the Economic, Social, and Cultural Covenant. It is our opinion that this fully protects the right to own property, indeed as certainly is the intention of the State Department understanding on this important point.

I might add that any effort to amend a multilateral treaty is extremely difficult. There virtually is no possibility of anyone renegotiating these treaties on this point, given the number of adherents to all of these treaties-with the exception of the American Convention, which specifically deals with the point and protects it-which have already entered into force. An amendment simply would not be something that would be a viable way of dealing with this question. In any event, it is fully protected by the understanding and the administration position.

Thank you, Mr. Chairman.

[Mr. Moore's prepared statement follows:]

PREPARED STATEMENT OF JOHN NORTON MOORE

Mr. Chairman, it is a privilege and a pleasure to testify before the Committee on behalf of the American Bar Association in support of accession of the United States to the Human Rights Treaties. While the United States has taken a strong lead in the promotion and observance of international human rights, our delay in accepting the international human rights treaties has hampered our efforts. We need to confirm our lead in promoting internationally recognized human rights norms by ourselves espousing publicly the standards embodied in the five human rights treaties before the Senate and by articulating our commitment to human rights through accession to these international agreements. We commend the efforts of this Committee in taking this critical first step toward ratification. The American Bar Association in recent years has given strong support for efforts to define and give international legal status to codes and precepts of human rights. In the late sixties, the American Bar Association House of Delegates formally declared its commitment and support for United States promotion of "universal respect for and observance of human rights and fundamental freedoms." This commitment was demonstrated again in 1967 by American Bar Association endorsement for United States accession to the Supplemental Slavery Convention. And in 1976, the American Bar Association endorsed the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The American Bar Association in 1978 extended formal support to the Convention on the Elimination of All Forms of Racial Discrimination, and supported in 1979 the International Covenants on Economic, Social and Cultural Rights and Civil and Political Rights. This past August the ABA voted to support ratification of the American Convention on Human Rights. All of these American Bar Association actions have been supplemented by related measures as well, such as the 1978 expression of support for the Helsinki Agreement's human rights provisions, and passing several formal resolutions condemning the actions of foreign countries which violated human rights.

Today the American Bar Association stands firm in its support for United States accession to the four international human rights treaties which President Carter transmitted to the Senate for its advise and consent. The American Bar Association urges the Senate to give its advise and consent to these treaties subject to the understandings, reservations and declarations proposed by the Administration.

The four American Bar Association resolutions pertaining to these treaties, which I would like to include in the record, each have recommended ratification subject to the understandings, reservations and declarations proposed by the Administration.' In one instance, however, the American Bar Association recommendation proposes an additional understanding concerning the interpretation of

1 Coples of the relevant resolutions as approved by the House of Delegates of the ABA are attached.

"the right to life" within the Civil and Political Covenant merely to make abundantly clear that on this point nothing in our adherence to these treaties could in any way affect the guarantees provided by our Constitution.

The reservations proposed by the Administration are relatively few in number compared with the numerous articles in all four treaties and should answer any concerns about implementing legislation, federal/state powers or possible constitutional conflicts.

One fundamental question that has been raised is whether the protection of human rights is a proper subject for the treaty power, that is whether the shaping of civil, political, social and economic rights should be legislated by treaty.

This question can be answered in two ways. Close examination of the provisions of the treaties reveals that they are compatible with United States law. Thus, ratification merely affirms our own national policies. Secondly, in view of the fact that the treaties are generally on all fours with United States laws, non-self-executing declarations have been proposed for each treaty. Such declarations require further implementing legislation for domestic legal effect. In this instance, existing federal and state laws already implement the rights guaranteed under the treaties. Thus, there is no further need to bring the language of the treaties into the United States domestic legal system. While the courts will be free to examine the treaties in order to interpret other United States laws, the non-self-executing language eliminates the courts' burden of interpreting the additional language of international treaties which grants rights already found in state and federal laws. In such cases where human rights may receive fuller expression under the treaties, ratification simply commits the United States to enacting appropriate implementing legislation to ensure such rights. Indeed, provision is made within the treaties themselves for enacting legislation to ensure implementation of treaty provisions. Thus by adopting the non-self-executing declarations, the Senate is assured that the rights enjoyed by United States citizens continue to be the subject of United States legislative and judicial jurisdiction.

A second question concerning the scope of the treaties is the preservation of federal-state relations. Most of the rights protected by the treaties are those which fall within federal jurisdiction. For those situations which remain within the jurisdiction of the states, however, they are fully protected by the proposed reservations concerning federal/state jurisdiction.

A third area of concern is any substantive conflict between rights protected by the treaties and other rights guaranteed by the Constitution or those which the American tradition long has emphasized and respected. One possible area of conflict involves the right to life. Article 6 of the International Covenant on Civil and Political Rights provides a general protection of the right to life and limits the circumstances in which capital punishment may be imposed or carried out. Under Article 6(1) "every human being has the inherent right to life." Also under Article 16 "everyone" is recognized as a person before the law. There is, of course, no authority in the treaty-making power to contravene the United States Constitution. However, in order to avoid any confusion regarding the meaning of these terms, the American Bar Association recommends, in addition to the Administration's proposals, the following understanding:

"The United States adherence to Article 6 (concerning the 'right to life') is subject to the Constitution and other laws of the United States."

Again, in the Racial Discrimination Convention, Article 4 contains prohibitions on freedom of speech and assembly which directly conflicts with First Amendment freedoms. Thus, it is necessary to reserve rights guaranteed under the United States Constitution.

The American Bar Association's urging of ratification with the understandings, reservations and declarations proposed by the Administration, as well as one additional understanding discussed above, is based on sound legal opinions as well as on genuine concern for the success of the ratification effort.

It should be noted that many of our allies and friends-for example the United Kingdom, Denmark, Sweden, Finland, Austria, the Federal Republic of Germany and Italy-all have ratified these treaties with substantial reservations. Rather than appearing to minimize our obligations, reserving with respect to certain provisions underscores the serious deliberation and commitment with which the United States views these international agreements. In contrast to states which wholly ratify international human rights treaties and neither implement them in practice nor observe them in spirit, the United States will be viewed as a serious, cautious but wholly committed participant.

Mr. Chairman, you will be presented during these four days of hearings with many reasons why the Senate should ratify these four human rights treaties.

I will reiterate these briefly, adding the American Bar Association's voice to those of many concerned witnesses, and will stress those policy reasons which in our opinion merit the most serious considerations.

The United States has played a leadership role in the drafting and promoting of numerous human rights agreements from the Universal Declaration of Human Rights in 1948 to the Racial Discrimination Convention in 1966. Responsible leadership therefore seems to indicate that the United States follow through on these initiatives and invest in our own work product, namely the instruments we helped craft and the enforcement procedures we assisted in developing.

The more specific effects of non-ratification relate to United States foreign policy and our role in influencing international relations. The United States in the past few years has been outspoken about human rights violations in other parts of the world. Our concern for violations of international human rights norms is reflected in United States legislation regarding trade and foreign aid, in our severing diplomatic relations with certain serious human rights violators and in words of concern spoken by the President and other government officials. The United States often cites the very treaties it has not yet ratified in support of its charges against human rights violations. Without binding ourselves by the same legal obligations we lose credibility with our friends and we lose standing to accuse the wrongdoers. Without subjecting our record to international scrutiny, we could appear false and dissembling. It is an obvious embarrassment to the United States when Third World countries compare our strong statements on human rights with our record on ratification of the human rights treaties.

This loss of face in the international sphere undermines our status. It may also affect our ability to establish and maintain other international agreements concerning mutual defense assistance, trade and commerce. For example, the failure of the United States to ratify the treaties could have ramifications for United States relations with our NATO allies, nearly all of whom are parties to these treaties.

Finally, a major consequence of United States failure to ratify these treaties is that we are shut out of important international procedures and decisionmaking processes. We cannot now participate in the Human Rights Committee, established three years ago when the International Covenant on Civil and Political Rights came into force, or the Committee to Eliminate Racial Discrimination which was established after the Convention came into force in 1969. Similarly, we cannot participate in the nomination and election of judges for the new InterAmerican Court on Human Rights, established by the American Convention, until we ratify that agreement. Thus, all these international bodies now function without our leadership, making decisions which ultimately may impact on us. Mr. Chairman, in conclusion, I would reiterate the position taken by the American Bar Association that the United States should accede to these human rights treaties. We cannot afford to wait thirty for these treaties to be ratified.

The Genocide Convention stands as a haunting example of Senate inaction on these issues. It is not under consideration today precisely because it has already been before the Senate four times and has been reported out favorably by the Subcommittee on each occasion, yet, has failed to gain United States ratification. Everything that can be said about the Genocide Convention, pro and con, has been said here before. As this Committee itself admitted during the 1976 hearings, "further hearings on the treaty were not warranted in view of the voluminous record made in hearings in 1950, 1970, and 1971." It is time to end the 30-year silence the Senate has maintained on the least controversial of the human rights conventions. On behalf of the American Bar Association, I urge the Senate to give its advice and consent on ratification of the Genocide Convention and the four other human rights treaties under consideration.

AMERICAN BAR ASSOCIATION'S APPROVAL OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, AUGUST 1978

Be it Resolved, That the American Bar Association favors the accession of the United States to the International Convention on the Elimination of All Forms of Racial Discrimination and urges the Senate to give its advice and consent to ratification of the Convention subject to the following understanding, reservations and declaration.

"(a) The United States understands its obligation to enact legislation and take measures under paragraph (1) of Article 2, subparagraphs (1) (c) and (1)(d) of Article 2, Article 3 and Article 5 to extend only to governmental or governmentassisted activities and to private activities required to be available on a non-discriminatory basis as defined by the Constitution and laws of the United States.

"(b) The Constitution of the United States and Article 5 of this Convention contain provisions for the protection of individual rights, including the right to free speech, and nothing in this Convention 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.

"(c) The United States shall implement all the provisions of the Convention over whose subject matter the Federal Government exercises legislative and judicial administration; 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.

"(d) The United States declares that the provisions of Articles 1 through 7 of this Convention are not self-executing.'

AMERICAN BAR ASSOCIATION'S APPROVAL OF THE RATIFICATION OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, AUGUST 1979

Be It Resolved, That the American Bar Association urges the Senate to give its advice and consent to the ratification of the American Convention on Human Rights subject to the following reservations, understandings and declarations:

1. The United States declares that the provisions of Articles 1 through 32 of this convention are not self-executing.

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

3. The United States considers the provisions of paragraphs (4) and (6) of Article 5 are 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.

4. The United States understands that subparagraph (2) (e) of Article 8 does not require the provision of court-appointed counsel for petty offenses for which imprisonment will not be imposed or when the defendant is financially able to retain counsel; it further understands that subparagraph (2) (f) does not forbid requiring an indigent defendant to make a showing that the witness is necessary in order for his attendance to be compelled by the court. The United States understands that the prohibition on dcuble jeopardy contained in paragraph (4) is applicable only when the judgment of an 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.

5. The United States does not adhere to the third sentence of Article 9. 6. The United States reserves the right to permit prior restraints in strictly defined circumstances when the right to judicial review was immediately available; the United States does not adhere to paragraph (5) of Article 13. 7. The United States does not adhere to paragraph (1) of Article 14, and understands that paragraph (3) of that article applies only to non-governmental entities.

8. The United States considers the provisions of paragraphs (4) and (5) of Article 17 as goals to be achieved progressively rather than through immediate implementation.

9. The United States considers that its adherence to the Protocol Relating to the Status of Refugees constitutes compliance with the obligations set forth in paragraph (8) of Article 22.

AMERICAN BAR ASSOCIATION'S APPROVAL OF RATIFICATION BY THE UNITED STATES OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CUltural RIGHTS, FEBRUARY 1979

I

Be It Resolved, That the American Bar Association favors the ratification by the United States of the International Covenant on Economic, Social and Cultural Rights and urges the Senate to give its advice and consent to the ratification of the Covenant subject to the following statements, declarations and reservation recommended to the Senate by the Departments of State and Justice:

(a) 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.