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power over individuals' lives, they prescribe not what governments should do, but what governments may not do. Second, the language of these treaties—indeed the language of human rights as a whole-is particularly susceptible to semantic, infiltration, that is, the redefinition of a term to serve the purposes of totalitarian doublespeak. Because of the high emotional appeal of human rights language and its operational function in international law, we cannot afford to abandon these concepts to the enemies of freedom. But this long-term semantic struggle will be waged in the implementation organs set up by these treaties, which argues for a responsible American voice in these fora. Third, only the establishment of an appropriate treaty obligation will make it clear that unilateral U.S. action on behalf of human rights does not violate the principle of non-intervention in the domestic affairs of the target country. Finally, if the implementation bodies misconstrue these treaties, is likely that such misconstructions will weaken, not augment, the Parties' obligations.

These reasons either to not apply to the Covenant on Econcmic, Social and Cultural Rights or are overridden by other considerations. I strongly oppose this treaty, because of its philosophy, its content, and the danger of misconstruction. First, it is largely the historical product of the Marxist ideology espoused by the Soviet bloc, coupled with the non-communist world's postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy. Second, viewed in the best possible light, this is a big-government treaty, which-by virtue of the principle of progressive implementation-would commit the United States to ever increasing levels of welfare, an ever increasing governmental control of the economy, and ever increasing restrictions on individual initiative and freedom. Third, if this treaty is misconstrued, it will most likely be in the direction of expanding the duties-mostly affirmative duties—of the States Parties.

To conclude, I wish to address myself to some arguments often heard in support of this Covenant. First, it is said that ratifying this treaty is cost-free, because it is a mere statement of goals. This is incorrect. The Covenant does contain legal obligations: a basic obligation to take steps towards the progressive realization of the rights in question, as well as additional obligations which must be implemented in full and at once. Further, in many cases the steps to be takenthe means to achieve the goals—are stated in great detail. Second, it is said that U.S. legislation already incorporates many of the principles laid down by the treaty. This may be true, but is beside the point. For in the present situation, we may freely amend such legislation, change our social goals, or reduce the amount of social services, if they prove too costly, or if they are better provided by private institutions. On the contrary, under the Covenant's principle of progressive implementation, we could not make such changes without violating the treaty; we would be forever pushed along a road which allows no return. Finally, it is said that whether or not this Covenant is ideologically contrary to the American tradition, we should ratify it, if only to show the Third World that we are sensitive to their political concerns. But this is sheer ideolugical appeasement, neither more justifiable nor more likely to advance the national interest than other forms of appeasement with which we are all too painfully familiar.

Senator ZORINSKY. Thank you, Mr. Garibaldi.
Mr. Lillich, the committee will hear from you next.



Mr. Lillich. Thank you, Mr. Chairman.

It is my understanding that our assignment today is to discuss the procedures under the conventions. In 7 minutes I will try to highlight them and perhaps we can come back to them during the discussion.

I have three basic points to make.

First, these procedures are relatively weak, some might even say ineffective, but, nevertheless, it is up to the United States to get in and participate in the development not only of the remedies but of the substantive law under all of the conventions that are being considered.

Second, I am going to outline, as time does not allow me to do more than that, the basic procedures under at least three of the four conventions. I will not discuss the Economic, Social, and Cultural Convention for reasons which perhaps I will allude to later on.

Last, I want to stress the fact that these conventions, with the declarations the President has suggested to all four of them, will have no impact or relatively little impact on U.S. domestic law. I'think this is terribly unfortunate, since domestic impact is part of the enforcement mechanism that you should be considering here today.

First of all, my basic thesis in general, to paraphrase Mr. Justice Holmes, is that rights without remedies are no rights at all. Therefore, in taking a look at the substantive rights guaranteed by any legal document, we have to examine the remedies quite carefully. The remedies under these four treaties are not particularly strong. Indeed, the United States is trying to weaken them with some of the suggestions that have been made in the President's message. Yet, nevertheless, they are remedies. They are remedies of which the United States should take advantage. They are remedies which in many instances will be utilized against the United States, whether we take advantage of them or not. For this reason it seems to me it is up to us to get in and participate in this game and develop the substantive law along with utilizing the procedures in these four treaties to develop and perpetuate our foreign policy interests.

The second point is, what are the basic procedures. Well, they are three in nature: first, reporting; second, state-to-state complaints; third, the right of individual petition.

The Civil and Political Covenant has a provision in article 40 allowing, indeed requiring, reports to the Human Rights Committee that is established under that particular covenant.

The Racial Discrimination Convention has a reporting procedure under article 9 which requires periodic reports to the Racial Discrimination Committee.

The American Convention, somewhat different than the other two, has a limited reporting procedure under article 42, but it has a potential under article 41(d) for a more thorough reporting procedure that I would hope the Human Rights Commission would develop.

Under all these reporting procedures, which time does not permit going into in any detail, it is fair to say that ultimately there is no real clout. Particular committees eventually will issue reports. They may well make recommendations. They may well condemn states. But the value here indeed is publicity, and perhaps no more than publicity. Perhaps that is all we should seek at this particular stage in the development of the internationl legal order.

The second type of procedure is state-to-state complaints. They are provided for in one way or another in all these treaties.

First of all, regarding article 41 of the Civil and Political Covenant, the President has said that he will opt for the discretionary judgment that he has and declare that the United States will allow complaints to be brought against it and will take advantage of the procedure to bring complaints against other states. There is an affirmative action that has to be taken here. The President has indicated that he will do it and that in approving this covenant you will be authorizing him to do it.

Under the Racial Discrimination Convention there is a built-in state-to-state complaint. No authorization is necessary; no declaration from the President is required.

Under the American Convention, the President once again has said that he will take advantage of the optional procedure under article 45 and that if you approve this convention he will take advantage of that and will commit the United States both to bringing and receiving state-to-state complaints.

Once again, what happens at the end of the procedure, which we do not have time to go into in any great detail today? Once again, there is something like a report. There may be a recommendation; but, as Secretary Christopher said, there are no legal, binding recommendations or awards under any of these particular procedures.

Last—and here I will be most critical-is the right of individual petition which everyone in the international human rights area agrees is the most effective device for transmitting information and generating action.

First of all, there is no individual petition right in the Civil and Political Covenant. As you know, there is an Optional Protocol, and the President has not seen fit to submit it to the Senate along with these treaties at this particular time. I think that is highly unfortunate.

Second, under the Racial Discrimination Convention, the President has an option to declare under article 14 that the committee can receive individual complaints, but he has not asked for your approval at this time. Actually, he does not really require your approval, although he apparently is willing to defer to you in this regard. Thus, there will be no right of individual petition if, indeed, the convention is ratified as now proposed.

Under the American Convention, rather ironically, there is a builtin provision in article 41, and therefore the right of individual complaint exists under it, and there will be no need for any subsequent action by the Senate.

It seems highly ironic in view of the United Nation petition under Resolution 1503 and the inherent right under the Inter-American system to file petitions that such a right is not contemplated by the United States under the other treaties. I would strongly suggest that when these treaties are ratified, they be done so in such a way that, across the board, there will exist the right of individual petition.

I see that the red light is on. I do not have time to develop my third point on the lack of impact these conventions, if ratified as proposed, will have in the United States. I will defer my remarks to the question and answer period.

Thank you.

Senator ZORINSKY. Thank you, Mr. Lillich.

Professor Buergenthal, you are in the next seat. We will be happy to hear from you now. STATEMENT OF THOMAS BUERGENTHAL, PROFESSOR, UNIVERSITY


I would like to thank you, first of all, for allowing me to appear before your committee on such notice and want to say that I am profoundly honored and grateful to have this opportunity. Although it is clear that I appear before you as a private U.S. citizen, I think prudence dictates that I state that I speak here only for myself and not for the court on which I have the honor to sit.

In dealing with the American Convention on Human Rights in general and its implementation machinery in particular, it is important to note that the convention was not yet in force when President Carter requested the Senate's authorization to ratify it. It is now in force and has, by this date, been ratified by 15 OAS member states. Among the American republics which thus far have not ratified the convention, in addition to the United States and Mexico, are Argentina, Brazil, Chile, Uruguay, and Paraguay. Except for the United States and Mexico, these all are countries which repeatedly have been accused of large-scale violations of human rights. This is deemed by many people in the hemisphere to explain their failure to ratify the convention.

That same reasoning certainly does not apply to the United States. But it cannot be doubted that American human rights policies would be viewed with less suspicion in the hemisphere and would be less open to the charge of hypocrisy if the United States headed the list of nations that had ratified the convention, a list which includes all of the democratic and moderate regimes of the Americas.

In discussing the implementation machinery of the human rights treaties that are before you, it is worth emphasizing that the American Convention alone establishes a system that provides for a judicial tribunal, the Inter-American Court of Human Rights. The only other such court in existence is the European Court of Human Rights, which was created under the European Convention of Human Rights.

Moreover, just like its European counterpart, the American Convention establishes the only other regional human rights system for the protection of human rights.

Because of the political interests shared by their member states and their smaller size, regional systems for the protection of human rights have proven to be more effective in implementing human rights than those based on treaties of a universal scope. Moreover, because of its special ties to and interest in the Western Hemisphere, it would be of particular importance for the United States to become part of the inter-American system for the protection of human rights and to do everything in its power to insure that this system succeeds.

Because of the institutions the convention establishes, this treaty has a strong potential of providing a foundation for the gradual democratization of Latin America. That is a goal to which the United States is committed and which certainly is in the long-term interests of the United States.

The American Convention establishes two institutions that comprise its implementation system. One is the seven-member Commission; the other is the seven-member Court. The Commission's job is to investigate any human rights complaint that it receives to determine whether it states a prima facie case, to seek to arrive at a friendly settlement, and to prepare a report stating its findings and recommendations. Only after all of these steps have been completed by the Commission can the case come to the Court, which has the power to enter a final judgment that is binding on the parties.

I might note in this connection that in the President's letter of transmittal it is ascerted that the Court has the authority to enter

permanent and temporary injunctions. I am hard pressed to find evidence in the convention that the Court has the power to enter permanent injunctions. I would hope that this question might be reexamined.

The Court may only hear a case if the state or states 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 Court's jurisdiction. It has to make a separate declaration to that effect.

As you know, in transmitting the American Convention to the Senate, the President did not request authorization to accept the jurisdiction of the Court, although he recognizes, quite correctly, that such authorization would be needed.

I find it extremely difficult to understand why the President decided not to seek this authorization. I would respectfully urge that he be invited to do so.

In the United Nations, in UNESCO, in the ILO, the United States for years has strongly deplored, and quite rightly so, the politicization of the human rights process. Yet, when we have an opportunity to take a dramatic step to depoliticize the struggle for human rights, by giving a judicial institution the final word, what does the United States do? It opts dramatically against depoliticization.

This is a particular mistake in the context of the OAS. The unwillingness of the United States to submit itself to the court's jurisdiction will be viewed by many nations as further proof that the United States sees human rights as an instrument for political intervention and that it is unwilling to submit its own domestic institutions to impartial international judicial scrutiny.

A related issue, Mr. Chairman, has to do with the fact that the President recommends that the Senate declare the American Convention to be non-self-executing. I do not want to argue the question of whether such a declaration is valid as a matter of constitutional law. But I do respectfully submit that it is most unwise, particularly in the context of 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 country in the Americas in dealing with human rights cases. They have a great and 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 libertarian tradition of Anglo-American law.

As a judge on the Inter-American court, I and, I am sure, my colleagues as well will feel a genuine loss at not being able to see how American courts interpreted this or that provision of the convention before we have to apply it. But it needs to be emphasized, Mr. Chairman, that the Court will not be the only loser; but will also be a great loss for the United States, for it will deprive the United States of the opportunity to play an important role in the hemispheric lawmaking process in which U.S. conceptions of justice and fairness should, and need to be taken into account.

I see that my time is up. I will fill in further details at a later time. [Professor Buergenthal's prepared statement follows:)

Thank you.

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