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More importantly, the substance of the provisions of these four treaties are entirely consistent with the letter and spirit of the United States Constitution and laws. In addition, President Carter in his letter transmitting these treaties to the Senate on February 23, 1978 stated “Wherever a provision is in conflict with United States law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understanding and declarations, there are no constitutional or other legal obstacles to United States ratification. The reports of the Department of State on these four treaties describe their provisions and set forth the recommended reservations, understanding and declarations."
The contents of these treaties have been adequately described and set forth in the letter of transmission by the President and the accompanying statement by the Secretary of State. I shall not take the time of this committee to repeat what they have said. Their explanation is comprehensive and encompasses all aspects of the four treaties.
Inasmuch as I was Chairman of the American delegation to the Belgrade C.S.C.E. conference in 1977/1978, I believe it fitting to emphasize the significance of these treaties in light of our national resolve to obtain full implementation of the Helsinki Final Act.
Principle VII of the Final Act declares that “In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound.”
Inasmuch, as the implementation review of compliance by all signatory states and particularly the East with the human rights provision of the Helsinki Final Act is one of its most important aspects, the United States is hampered in seeking a full and adequate review by its failure to ratify the international covenants relating to human rights.
We were challenged by the Soviet Union and its satellites on this very ground at Belgrade; we will be challenged again in late 1980 when the next Helsinki C.S.C.E. conference takes place in Madrid.
I should also like to note that the United States has been a leader in the negotiation of these treaties. This is natural and understandable. Our country is recognized to be the leading advocate of human rights and fundamental freedoms here and abroad.
If this advocacy is to be accepted as something more than mere rhetoric it is particularly important that at long last we ratify the Genocide Convention and that we ratify the four human rights treaties under consideration by the committee.
All are thoroughly consistent with our national purposes as reflected by the Bill of Rights and the Constitution.
Senator Pell. Thank you very much.
RIGHT TO OWN PRIVATE PROPERTY REFERENCE
What is your view with regard to the suggestion of Senator Helms that there should be some reference to the right to own private property?
Justice. GOLDBERG. I heard the Senator's statement and I think there is merit in it. But, with due respect to Senator Helms, I would not phrase it in precisely that language.
Each country has the right to determine its own social system. In reference to the Universal Declaration of Human Rights, we, in America, have throughout the years reaffirmed the right of our citizens to own property as the Universal Declaration of Human Rights provides.
We must remember that when the Universal Declaration of Human Rights was enacted many years ago, the world was a different world than it is now. The United Nations members were mostly Western countries which adhere to the system, which I strongly support, of free enterprise and private property. But we must recognize that in a pluralistic world each country has the right to adopt its own social and economic system. We cannot interpose our views, as good as we think they are, upon other countries.
So I think a variation of what Senator Helms has proposed could take care of his legitimate concern, which is that nothing in the ratification process shall in any way affect our method of recognizing and respecting private enterprise or private property and that expropriation of American property on foreign countries is something we do not favor and must in any event, comply with international law.
AMENDMENT DEALING WITH ARTICLE 17 PRIVATE PROPERTY CLAUSE
Senator PELL. I believe these treaties exclude article 17 of the Declaration of Human Rights which refers to private property as a human right. Would you then be opposed to an amendment in this regard to the treaty?
Justice GOLDBERG. I would be opposed to an amendment but would support a reservation or understanding of the type I have described.
When I was United Nations Ambassador, I made very clear that the United States takes the position that these treaties in no way impair any country's right to protect under its constitutional processes. the right to own property and to develop its own economic system in its own way.
Not all provisions of the Universal Declaration of Human Rights are incorporated verbatim into these treaties. These treaties are not merely a reaffirmation of the Universal Declaration of Human
Rights. They contain many provisions which go beyond the Universal Declaration of Human Rights. They also omit some of the provisions of the Declaration. These treaties stand on their own. As I said earlier, every country in the world knows that in negotiating these covenants, the United States very plainly said that these treaties in no way impair our Constitution and its protection of individual rights and private property.
Senator Pell. But what you are talking about here is an understanding for a reservation and not an amendment; isn't that correct?
Justice GOLDBERG. Yes. We cannot amend a treaty unless we renegotiate. I apologize for not catching the import of your statement. I think what Senator Helms is concerned with is the principle and not the form. In form there could be an appropriate understanding or reservation which, however, should be confined to our country and rules of international law. We cannot, as I said, impose our system upon other countries. We can reassert the validity and our commitment to our own system. That we have a right to do and should do.
Senator PELL. Thank you.
RESERVATIONS THAT DEFEAT PURPOSES OF COVENANTS
I have another question along these same lines. Do you consider the general declaration concerning the non-self-executing nature of the covenants to be construed as defeating the object and purpose of the covenants?
Justice GOLDBERG. I'm sorry, but I didn't quite hear you.
Senator Pell. This is in connection with reservations to the covenants, whether you believe any of the ones on which we now are working, or that are coming before this committee, defeat the purposes of the covenants. In particular, do you believe the general declaration concerning the non-self-executing nature of the covenants might be construed as defeating the object and purpose of the covenants?
Justice GOLDBERG. No; I do not.
Senator Javits. Mr. Chairman, might I ask one question, please. I am needed on the floor. Senator PELL. Certainly, Senator Javits.
PRESIDENT CARTER'S DECLARATION ON PRIVATE PROPERTY Senator JAVITS. Mr. Ambassador, the President recommends in connection with the International Covenant on Economic, Social, and Cultural Rights the following declaration, which is relevant to what you have just testified:
The United States declares that nothing in the covenant derogates from the equal obligation of all states to fulfill their responsibilities under international law. The United States understands that under the covenant everyone has the right to own property alone, as well as in association with others. No one shall be arbitrarily deprived of his property.
Do you consider that adequate? Would you have any suggestions as to revision or any other comment respecting this declaration?
Justice GOLDBERG. In my prepared statement I referred to the President's reservation, but I did not read it. I have one difference with this formulation, the one that I mentioned. This is that I think this committee, in its wisdom, might well tailor a more carefully crafted reservation relating to the fact that we are talking about our country and international law.
The point I am making is a simple fact of life. It is that we cannot impose our views about social and economic matters upon other countries.
I am not talking exclusively now, for example, about social systems in the East. We have NATO allies which have socialist regimes. They have taken over various types of property. It is not our system to do so, but it is not our prerogative to impose our views on them.
So I would think the President's reservation should be more carefully crafted. I am sure, in the wisdom of this committee, that reservation will be considered in light of the obvious fact of life I have mentioned.
Senator Javits. The President suggests this declaration respecting this particular covenant, the one on economic, social, and cultural rights. I assume that any declaration to be made should apply to all of the treaties. Indeed, it should just be the general policy of the United States. As it is a declaration, might it not be generically applied to all treaties of this character to which the United States is a party?
Justice GOLDBERG. Senator Javits, that is exactly so. This is not a new thing, as I have said.
I negotiated these covenants when I was Ambassador at the United Nations. In each case I made very clear that nothing in the treaties shall in any way impair the protections accorded by the Constitution. I did so in the case of each of the covenants. There well might be drafted a declaration in the form of a reservation or understanding saying that nothing in any of these treaties in any way shall impair the Constitution of the United States.
Indeed, it cannot be otherwise because under well settled legal doctrine no treaty can repeal the Constitution of the United States. Treaties must be compatible with the Constitution of the United States.
Senator Javits. What I had in mind was the possibility of a resolution of the Senate which, in essence, would read in connection with the Senate's ratification of the treaty, it makes the following declaration, colon and quotation marks. Then, as you said, we would include a carefully crafted statement.
Justice GOLDBERG. I think that would be a very good idea, and one, I repeat, though I hope not ad nauseam, in which all countries of the world who are participants in the negotiating process are put on notice that our country, in negotiating a treaty, cannot give away the Constitution of the United States, and that our conception of these great treaties—and they are great treaties; I hope no negative inference will be gleaned from what I have said-simply as a matter of law, we, in executing any treaty, cannot in any way impair the constitutional safeguards which are applicable to our citizens and those who legally reside in our country.
Senator Javits. May we consult you about this?
NATIONALIZATION OF AMERICAN PROPERTY ABROAD
Mr. Justice, isn't there a difference between application in the United States and application abroad? While not presuming to speak for Senator Helms, I think the problem he is trying to face is the nationalization of American property in other countries.
Do you believe that these treaties have any bearing on that matter?
My personal view is that they do not, that they have a bearing on what we do within our own borders.
Justice GOLDBERG. You are entirely correct, Senator. This is why I said it should be confined to what happens here.
All of these treaties contemplate implementing legislation. Implementing legislation means that we legislate in reference to activities in our own country.
Senator PELL. To be specific, the nationalization of American property, if it occurred, would it be covered by this treaty? Say, forexample, that Italy became a Communist state and nationalized American property there. Is that covered?
Justice GOLDBERG. No, it would not be.
Justice GOLDBERG. It is subject, however, to rules of international law. We have made this clear at the United Nations. We stated we were opposed to expropriation of foreign owned property. But any country exercising the right of eminent domain, as we exercise that right in our own country, is subject to the rule of payment of prompt, adequate, and fair compensation. We made that clear at the United Nations.
This has been the position of our country, and not only the position of the United States. It is the accepted rule of international law that this, indeed, is so.
POLITICIZATION OF BODIES SET UP BY TREATIES
Senator PELL. The United Nations Commission on Human Rights is subject to much the same politicization as is the General Assembly, or at least that has been our experience so far. Do you think that the bodies set up under these treaties also will be subject to the same politicization?
Justice GOLDBERG. There is no way of defending ourselves against inappropriate and irresponsible rhetoric. This we cannot safeguard against, but we can make clear that the United States, in ratifying these treaties, proudly takes the position that we are foremost in the human rights area and in the protection of social and economic rights of people. That is our position. Other people may argue, as they always do, at the United Nations and in the Commission on Human Rights, that this is not the case, but they are wrong.
Senator Pell, you will recall what you said and what I said at Belgrade. Our record is not perfect, but it is far better than the record of virtually every other country in the world.
Senator PELL. Amen.
IMPACT OF TREATIES ON LESSENING REPRESSION IN EAST EUROPE
In terms of East-West relations, do you think these treaties will have any impact upon lessening the repression that exists in Eastern Europe?
Justice GOLDBERG. Yes, I do. I think that is their great value. I think the symbolism of the Congress of the United States in ratifying these treaties will emphasize our commitment to the basic ideals of protecting human rights and fundamental freedoms. I think this has a great impact.
Senator PELL. I thank you very, very much, indeed. It is a great honor to have you with us, Mr. Justice.
Justice GOLDBERG. It has been a great pleasure for me.
Our next witness is the Honorable Warren Christopher, the Deputy Secretary of State. I believe he will be accompanied by Ms. Patricia Derian, Assistant Secretary of the Bureau of Human Rights and Humanitarian Affairs of the Department of State and the Honorable Roberts Owen, Legal Adviser of the Department of State.
Mr. Secretary, thank you very much for being with us today and for your patience and understanding.
Mr. CHRISTOPHER. Good morning, Mr. Chairman.
Senator PELL. We are delighted to welcome you and your associates to the committee today. STATEMENT OF HON. WARREN CHRISTOPHER, DEPUTY SECRETARY
OF STATE, DEPARTMENT OF STATE, WASHINGTON, D.C. Mr. CHRISTOPHER. Mr. Chairman, I would like to have your permission to shorten an already short statement so as to conserve the time of the committee.
With your concurrence, I would ask that my full statement be made a part of the record.
Senator PELL. Your statement will be inserted in full.