What I would like to urge upon you, Mr. Chairman, is that you yourself take the leadership in getting this full committee to go through whatever routine seems to be necessary to bring out a new report, if that is indicated. The same report has been issued time and time again. Send it to the floor of the Senate.

Mr. Chairman, this could be done in a matter of days if the Senate committee and the leadership of the Senate is so disposed. For the sake of our good standing in the international community, this should be done now.

Thank you, Mr. Chairman.

[Mr. Bitker's prepared statement follows:]

PREPARED STATEMENT OF BRUNO V. BITKER

Mr. Chairman: I appear before this Subcommittee of the Senate's Foreign Relations Committee pursuant to its invitation. Although I am affiliated with and have been active for many years in various non-governmental organizations, my appearance today is wholly as an individual. At the outset let me say that I support ratification of the four treaties now being considered. However, I do so subject to such reservations and understandings to specific treaty provisions as are in conflict with the Constitution of the United States.

It is basic to our constitutional system and the political framework of our nation that treaties are the supreme law of the land. But the Department of State went much further in its December 17, 1977 recommendations to the President of the United States when it suggested reservations, understandings and declarations that covered not only constitutional questions, but covered legislation which the Department considered objectionable. The result is to pervert Article 6 of the Constitution (the supremacy of treaties) so that treaties would no longer be the supreme law but rather be subject to all the vagaries of local as well as national political entities which have already adopted, or may hereafter adopt a rule, or ordinance, or statute which is contrary to the requirements of the treaty.

The numerous limitations proposed by the Department of State suggest that someone in some division went through the treaties with a fine tooth comb. It would appear as though every time he came upon a provision to which some senator might conceivably object, a limiting provision was inserted. At each step as it went up the ladder to the top, the next rung was assured that without such limitations the treaty would never be accepted by the Senate. By the time it reached the President the ritual had become holy writ and, on what must have appeared to him as the unanimous endorsement of all, he signed the letter of transmittal to the Senate on February 23, 1978, accompanied by the State Department's analysis and recommendations of December 17, 1977.

No President has been more outspoken on, or been more positive of our position on human rights in the world community than has President Carter. Therefore, it is particularly difficult to believe that he intended the adoption of or the restrictions on the treaties which have a negative if not an emasculating effect. When the President said that "I recommend that the Senate give prompt consideration to the treaties and advice and consent to their ratification", I must assume that the only limitations he might desire are those which go to constitutional questions. These are the traditional questions which might be raised as to any treaty, and are in accordance with the constitutional provision that treaties are the supreme law of the land. This means exactly what it says and does not permit giving local or national legislative enactments a superior position. Perhaps this is why the President's transmittal letter merely states that he is submitting to the Senate, for its information "the report of the Department of State", without a specific assertion that he endorses all the Department's recommendations. This may be reading into the President's message more than he intended to say. But I must confess I cannot believe that he would want the Senate to do anything to weaken the treaties. For, as he said, "by giving its advice and consent to ratification of these treaties, the Senate will confirm our country's traditional commitment to the promotion and protection of human rights at home and abroad."

It was disappointing to me that the Optional Protocol to the Covenant on Civil and Political Rights was omitted. Regarding this Protocol, the State Department's letter of December 17, 1977 says: “A related instrument of significance which is not being submitted to the Senate at this time is the Optional Protocol.

It is indeed an "instrument of significance". For, as the Department states, it: "establishes a procedure under which individuals who consider their rights under the Covenant to have been violated may, after exhausting all available domestic remedies, appeal in their individual capacity to the Human Rights Committee established by the Covenant". In many nations, the assertion of rights against the state, may not only be unwelcome but could prove disastrous to the complainant. Hence the need to permit an individual to pursue his rights through international procedures as provided by the Protocol.

The Department's letter says the Optional Protocol is not now being submitted. Two years have elapsed since it so announced (more than three and half years since it came into force in the United Nations). But to date there is no indication from either the State Department or The White House as to when this "instrument of significance" will be submitted to the Senate.

One final comment. It has been said, in and out of government since the Racial Discrimination treaty as well as the three other treaties now before this committee, were first signed by the United States, that they would not be acted upon until the Genocide Treaty was acted upon by the Senate. I am not suggesting that this subcommittee now conduct a hearing on Genocide. Everything that could possibly be said for and against that treaty, has been heard by this committee ever since it was first submitted to the Senate in 1949 by President Truman. It has been reported out favorably by this committee on several occasions. But when it reaches the floor of the Senate, a threat or an actual filibuster has bluffed the supporters, and no vote has ever been taken.

In our foreign relations, in every international organization in which we are a party, our inexcusable failure to ratify the Genocide treaty has been conspicuous. It is a national disgrace. It has been and continues to be the basis upon which we are accused of hypocrisy on our claimed leadership in the world community respecting human rights.

I would like to suggest, Mr. Chairman, that a meeting of the full committee be convened and the necessary formalities briefly complied with and the treaty sent to the Senate floor forthwith. This could all be done in a matter of days if the committee and the Senate leadership are so disposed. Let the treaty be voted up or down. I am willing to take my chances that if voted upon only a handful of senators would vote against it. If it succeeds there, then the way is opened for the consideration of other human rights treaties.

I have not attempted in my statement to examine in detail the provisions of the treaties not to discuss at length the restrictions that have been erroneously proposed. These are being covered by other witnesses. However, as an example of the far reaching effect of some of the proposed reservations, I refer to Article 4 (5) of the American Convention which prohibits capital punishment of those under 18 years of age or over 70, and on pregnant women. Can you imagine the United States taking a position that pregnant women can be executed? Well a proposed reservation does just that.

For the benefit of the staff which may prepare a report for your consideration I would like to cite a few documents which might be useful. On the basic treaty making power of the United States in human rights matters, see Report of Special Committee of Lawyers, Justice (retired) Tom Clark, Chairman, October 1969. It is out of print but was made a part of the record at the Genocide hearings, May 1977, at page 139. For a detailed analysis of the two U.N. Human Rights Covenants, see Weissbrodt, Minnesota Law Review, Vol. 63, November 1978, page 35. For a discussion of the Racial Discrimination treaty, see Bitker, Marquette Law Review, Volume 53, Spring 1970, page 68. For an analysis of the American Convention, see Fox, Human Rights, Vol. 3, No. 2, Fall 1973, page 243.

Senator PELL. Thank you, Mr. Bitker.

I must say that obviously your words touch me very deeply. As you point out, at the time when my father was U.S. representative on the U.N. War Crimes Commission, he was carrying out wishes of President Roosevelt as expressed to him. He pursued them vigorously. The State Department at the time was worried about the Soviets and did not not want to be too beastly to the Germans. It was reflecting the British view; that is, Alexander Cadogan, Green Hackworth, and others over here. They did their best to sabotage my father's mission there. So he had to go public and this cost him his job. But it secured a reversal in law in that genocide was declared a war crime, even if it was ex post facto.

This is a bit of unfinished business that is before us, and I consider it to be before me, too. I appreciate your words more than I can say. Thank you.

Mr. Oliver, we would appreciate hearing from you.

STATEMENT OF COVEY T. OLIVER, PROFESSOR OF PUBLIC AFFAIRS, RICE UNIVERSITY, HOUSTON, TEX.

Mr. OLIVER. Mr. Chairman, before I introduce myself I simply want to say that what I just heard, recalling the noble past of your father and yourself, touched me also.

In my statement, which should have been received by due course of post 3 days ago but I realize that is the business of another committee of the Senate-I also call for speedy consideration of the Genocide Convention as well as the four human rights treaties you are now considering. I associate myself with the view just expressed, that the Genocide Convention is a fundamental of the whole process of alining the United States internationally with respect to human rights.

I am Covey T. Oliver, emeritus professor of international law at the University of Pennsylvania Law School and presently professor of public affairs at Rice University in Houston, Tex.

I have spent 14 years-through 6 interventions-of a working life in U.S. foreign affairs operations. At one time I was Assistant Secretary of State for Inter-American Affairs. I have studied and taught international law for 31 years. Thus I am in a particularly good posi-tion, I think, to evaluate the importance of our adherence to the human rights and Genocide treaties.

I suppose I was invited to be on this panel instead of on the one with my colleagues in international law, because this one is to deal with U.S. foreign affairs law aspects of the treaties submitted to you.

I brought two copies of my statement with me. One may be avail-able to you and one to a member of your staff. I regret that extra copies did not get here earlier.

In my statement I focus on the U.S. foreign affairs law and operations problems inherent in the article II treaty-approving power, which I fear will come into play again with respect to the human rightsconventions.

These four human rights conventions, given the delays in their submission to you, by the executive branch are in serious danger of being further delayed, buried, or even consigned to moulder with the Genocide Convention in the Senate graveyard of treaties. With regard to the criticisms by others of the executive branch's reservations-and I share the main ones that were articulated earlier today and except from my criticism only one that I think is essential-they [the reservations] in large part are a product of the unique "American way with Treaties"-the singular manner in which the United States of America, as a state among states in the world community, brings its international commitments into effect, if the article II route is chosen.

I am grateful that you have asked me back, because I am a frequent critic of the failure of the U.S. Government-the Congress and the Executive to use more widely a legally valid alternative to approval of treaties by two-thirds of the Senators present and voting under article II of the Constitution-single, bicameral majorities. I address

myself now briefly to the treaties. I was asked by a member of the staff to present specifically the Convention on All Forms of Racial Discrimination in lieu of a colleague from Harvard, Prof. Clyde Ferguson, who could not come today. I will take his time, if I may-his 5 minutes-as well as the minute or two left in my own time.

As to what I have to say, I call your attention as to the submission in general of these treaties to the paragraph beginning on pages 5 of my statement, which I shall now read very quickly.

The four conventions before you today-and the Genocide Convention are not needed to conform American law to more just human rights ends and I stress the word "ends"-but to aline us with the ""good side" in world affairs and give us the credibility we now lack as we use our influence to promote human rights. I am a Democrat and I expect the next President will be a Democrat. All Democrats now running are strongly committed to the use of all appropriate influence to advance human rights.

A few years ago, I had the benefit, while looking into human rights in Chile for the International Commission for Jurists, of the presence at the same time, on a similar mission, of an American group close to Senator Kennedy. I have had some problems with the actual administration of President Carter's human rights lines of action, precisely because without a base in international legal commitment, we may have gone farther in utterance and in denial action than can be justified as noninterventionist or under existing law binding on us, such as the Articles of Agreement of the World Bank of which I was once an Executive Director.

Honesty in appraising the indicia of what is customary international law, as distinguished from obligations under treaties, ought to compel even the best friends of international human rights to admit, with reluctance, that there is no nontreaty base for contending that a state must be just, humane, and decent to its own citizens or subjects. It is this need that makes these four conventions, and the Genocide Convention, so essential to this country's national interest, properly viewed, today and tomorrow.

This is all I plan to say on the general submission.

Let me turn now to the task that Professor Ferguson was to have dealt with. I am referring to the submission by the Executive to you, the text of the convention against racial discrimination. In articles 1 and 5 I find fairly general congruence between the treaty and U.S. law. I recognize the constitutional problem-the Skokie problemshall we say, that article 4 of this convention presents to us. I think the world will understand a reservation to preserve our wide guarantee fo free speech. It is in extreme cases of the "utterances we hate" a controversial issue even in this country, but we have held firm against the temptation to trespass upon freedom of utterance and freedom of thought, even in the name of nondiscrimination. It is a difficult position, but an essential one, I believe. I hope that those who have supported that position, such as the public organizations now suffering from having done so, will be seen in more favorable light in the future. As to article 14, I too, wish the declaration could have been submitted now, that it all could have been done at once. But in response to fear in certain quarters, and we have heard them expressed todayI am more tolerant, more sympathetic with-having heard Mrs. Schlafly's presentation, than I was when I came in here today as to the caution of the executive branch.

All of this, too, Mr. Chairman, takes me back a long way. I should have said in introducing myself that I am an ex-combatant in the Bricker amendment fight of 1951-54. Before the late Senator Everett McKinley Dirksen, for whom this building is named, we went through a great debate as to whether the treaty power of the United States should be limited to the interpretation legislative power of the Congress, as stated in article I-as interpreted by the courts.

I have no doubt, looking back, but what the "Bricker bicker," as I have called it, was triggered, not so much by neoisolationism, as by a fear in many quarters that these conventions, when they came into effect, would eliminate "separate, but equal"-"Jim Crow" and the like in the United States. But Jim Crow laws, thanks to our system, fell to the Supreme Court's interpretation of our Constitution, or, I might say, in my view, its reversal of a judicial abuse of power in Plessey v. Ferguson, 1896.

Lingering memories of Bricker have a great deal to do, I think, with fears of the sort we have heard today, that the human rights conventions might require us to do "something terrible."

Happily for us, social evolution since has taken most of us into an era where we can, with considerable assurance, accept these treaties as the "supreme law of the land" without the necessity of general reservations stating the treaties to be non-self-executing and certainly without outrageously misleading Federal-State clauses that purport to freeze the power of the Federal Government of the United States vis-a-vis the States below the maximum level of Federal supremacy under article XI.

Thank you.

[Professor Oliver's prepared statement follows:]

PREPARED STATEMENT OF PROFESSOR COVEY T. OLIVER

IN SUPPORT OF SPEEDY SENATE APPROVAL OF FOUR HUMAN RIGHTS CONVENTIONS

Once again you have invited me here to give you my judgment on a matter involving the Senate's grave responsibility under Article II of the Constitution. I especially appreciate this confidence in me, since, as is well-known, I have been a frequent critic of the fact that the Senate, limited as to collective judgment by the rule that one-third plus one of this body can kill, amend away, or bury a provident or even vital treaty has nonetheless been so often the route chosen by the Executive to bring Congressional participation into play.

I strongly support the view, as I stated here whilst testifying on the Panama treaties, that the Executive ought, to the maximum extent feasible, use the entirely legitimate alternative route of seeking approval of international agreements by simple majority votes in both chambers. The series of "cliff-hangers" involving the Panama treaties-the single vote margin of approval in the Senate and the ups and downs of the implementing legislation in the House confirm by hindsight that the Executive should have used the alternative means of approval in the first place-even at the risk of thunder or a law suit from some Senators. In connection with the presidential ending of the mutual security treaty with Taiwan in accordance with its own terms, a few members of the federal legislature have been heard by a federal district court recently to complain of what majorities in the Senate and the House were not willing to assert, a legislative right to participate in the termination of a treaty. At this very hour today this ruling is being argued on accelerated appeal at another place in this capital. This instance, also, shows that we have a growing crisis on our hands as to how we as a nation manage the international agreements power, both democratically and effectively. We ought to be aware of this crisis and of the fact that of all the nations in the world, democratic and otherwise, we are the only one that has so complicated and uncertain a way of dealing with an absolutely essential element of organized life on this planet, that of international agreements. These are the very fabric of modern and future international relations.