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how binding, if any, the declarations and understandings are. If we all cannot agree among ourselves what the treaties mean and what effect they will have, then how do we know what the courts in this country or the international tribunals will decide?
I would like to say also that I think the arguments against the Genocide Convention are probably even stronger than the arguments against these covenantsSenator HELMs. I agree.
Mrs. SCHLAFLY (continuing). Because under the Genocide Convention, individual American citizens could be hauled up before a foreign tribunal on the alleged crime of causing mental harm to any member of any racial or other group.
Mr. BITKER. Mr. Chairman, may I comment?
Mr. BITKER. I was just going to take issue with the statement Mrs. Schlafly made. It is true that the Genocide Convention does provide that if there is created an international tribunal, then, under some circumstances, these matters could be heard by that tribunal. There now is no such tribunal and before such a tribunal could be created it would have to be by a treaty upon which this Senate would have to pass.
Senator HELMs. Well, we have had a great deal of experience around here with treaties, the most recent and significant one being the treaty to give away the Panama Canal. At the time that treaty was approved by the Senate, we were given all sorts of assurances that this great thing would be beneficial to the United States, that Panama would accept and respect the reservations. Now we learn too late that this simply is not so.
So, I think we are wise to err on the side of caution and I think that is precisely what Mrs. Schlafly has been saying here this morning, and I thoroughly agree with her.
Mrs. SCHLAFLY. Senator, I think the Panama Treaty is another good example of how treaties do override the Constitution. The Constitution clearly says that American property can only be given away with the consent of Congress. Congress has two Houses. The giving away of hundreds of millions of dollars of property in the Canal Zone was not submitted to the House as part of the treaty, and I think the treaty did override the Constitution.
Senator Javits. If I may respond, what about the implementing legislation which was passed by both Houses and is now law?
Mrs. SCHLAFLY. Yes; but both Houses of Congress did not pass on the treaty or on the whole matter of giving away the property which was involved in the treaty.
Senator Javits. I thoroughly disagree with you, Mrs. Schlafly. It passed on everything the treaty covered. It is a law signed by the President. There is no question about the title in my opinion.
Senator HELMs. In that, Mr. Chairman, we can agree to disagree agreeably. (General laughter.]
Mr. Chairman, I have had an urgent call to go to the floor, so I'm sorry, but I must leave.
May I extend my thanks to our witnesses.
I thank very much Mrs. Schlafly, Mr. Bitker, and Professor Oliver for being with us today. I thank all other persons who have appeared here today as well.
This concludes today's hearing.
[Whereupon, at 12:11 a.m., the committee adjourned, to reconvene at 10 a.m., Friday, November 16, 1979.]
[The following information was subsequently supplied by Mr. Bitker:)
MILWAUKEE, Wis., November 28, 1979. Hon. CLAIBORNE PELL, U.S. Senate Foreign Relations Committee, Dirksen Office Building, Washington, D.Ć.
DEAR SENATOR PELL: It was a matter of considerable satisfaction to me to hear your reactions to my suggestions concerning the Genocide Convention made before you at the Senate Committee hearing on November 15, 1979. I pray that you may succeed in moving the full committee to reissue its previous report to the full Senate. Nothing need be added.
During the discussion before you, it was asserted that under the treaty an American citizen might be deprived of his constitutional right of a trial by jury, or be forced into a trial in some foreign court under procedures not consonant with American practices.
It is correct that Article VI contemplates a trial in the state where the crime was committed or "by such international penal tribunal as may have jurisdiction”. In fact, no such tribunal exists despite years of efforts within the United Nations to create one. At some future date, assuming a treaty is presented establishing such a court, the President would first have to approve it and the Senate give its advice and consent to ratification. Obviously no such approval would be forthcoming or consent granted if the treaty failed to assure American citizens all existing constitutional rights. This would also apply to a treaty on extradition.
If an American citizen is seized abroad, no treaty will guarantee a fair trial by an unfriendly nation. This is what we fear today respecting threatened spy trials of American hostages in Iran.
To foreclose any question of where an American citizen living in the United States could be tried, the Committee in its previous reports set forth its understanding:
"That the U.S. Government understands and construes article VI of the convention in accordance with the agreed language of the Legal Committee of the United Nations General Assembly, that nothing in Article VI shall affect the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside the state”. (See p. 2, No. 3 of Committee Report of April 29, 1976. Repeated in Text of Resolution of Ratification, p. 41, No. 3).
With respect to the treaty making power, it has always been the law under the United States Constitution that it permits a treaty on any matter which is a subject of negotiation between our government and other nations, and which does not "authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent”. (Geoffrey v. Riggs, 133 U.S. 258, 267 (1890). See, too, Restatement of Foreign Relations Law, Sect. 40, comment b at 117 (1965).) Sincerely yours,
BRUNO V. BITKER,
Attorney at law.
INTERNATIONAL HUMAN RIGHTS TREATIES
FRIDAY, NOVEMBER 16, 1979
UNITED STATES SENATE,
Washington, D.C. The committee met, pursuant to notice, at 10:05 a.m., in room 4221; Dirksen Senate Office Building, Hon. Claiborne Pell presiding.
Present: Senators Pell, Javits, and Helms.
We are in the third day of hearings on International Human Rights Treaties. We have quite a long list of witnesses today, and I would hope everyone would limit his or her oral presentation to 7 minutes in order to save time and so that everyone may be heard within a reasonable period of time. Written statements of course may be as long as the witnesses wish, and will be placed in the record in full.
Our first witness today is Hon. George Miller, Chairman of the Members of Congress for Peace Through Law [MCPL] Human Rights Committee. I am very glad to be a member with Congressman Miller in the MCPL.
Congressman Miller, I am sorry you could not be here a few days ago, and we are glad to hear your testimony at this time.
STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN
CONGRESS FROM CALIFORNIA
Mr. MILLER. Thank you, Mr. Chairman. I apologize for not being able to attend the hearing a few days ago. I will be brief in my testimony since the House, as the Senate, has just gone into session. Being a captive of the bell system, I do not have a great deal of time this morning.
I am testifying as chairman of the MCPL Human Rights Committee. I expect to testify and to lend my personal support and the support of the members of that committee to the ratification of the Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. We are saying to this committee and to the Senate in support of ratification, that these covenants establish the recognition of basic rights and basic needs of people in countries around the world. These covenants will give us a standard of human rights that can be recognized throughout the world, a standard to which countries can be held, and by which they can be judged. It will not simply be a standard based upon the opinion of a single President of the United States or a few members of the Senate or Congress, or various citizen organizations or individuals; rather, it will be a standard applicable throughout the world. I think this is the most important thing to remember.
The covenants also will have us recognize the concept in the Third World of basic needs and also to recognize what I think we hold to be the concept of basic rights which should be enhanced by Governments and should not be interfered with.
The covenants which will allow us to engage in the working and ongoing process of the United Nations to help bring about the goal of human rights which certainly this administration has articulated and which you, Mr. Chairman, have articulated, as have many Members of Congress.
Some will argue that there is no enforcement mechanism, that we cannot run around and penalize individual regimes or countries, even in the events in the world today. But, the court of world opinion, if it can be properly focused, as has been done recently, can have an impact. Where this can be done on a uniform basis, where people can be brought to that bar and made to show what progress they have achieved in the area of human rights, or their failure or their outright violation of human rights, the impact will be far beyond what this country can do by itself in the condemnation of human rights violations.
As one who has spoken out about the violation of human rights in many, many parts of the world, I would hope that the United States can become a party to these covenants so that we, too, can participate in bringing a discussion of human rights to the forefront in every part of the world.
With that, I would ask your permission that my full written statement be entered into the record.
I would be happy to answer any questions you might have. [Congressman Miller's prepared statement follows:
PREPARED STATEMENT OF Hon. GEORGE MILLER Mr. Chairman, I appreciate this opportunity to testify before you in support of ratification of the United Nations Covenant on Civil and Political Rights, and the Covenant on Economic Social and Cultural Rights. These two treaties for the first time set a standard for all nations of the world to follow by defining the full scope of what are considered “human rights.” They set a solid cornerstone for U.S. human rights policy in the 1980's.
Members of Congress for Peace through Law (MCPL) is a bi-cameral, bipartisan caucus of 163 Members of Congress who work together on foreign and military policy to support international institutions and to reduce the threat of arms proliferation. MCPL's Human Rights Committee, which I chair, provides a forum for its 21 House and Senate members to speak out on human rights violations around the world.
While I will discuss my reasons for ratification for the two covenants, I am not a legal expert fully familiar with the specific reservations and understandings contained in the President's letter on transmittal; I will therefore not address these questions, except to say that it is my belief that the majority of the Covenants' provisions are fully consistent with our Constitution and our law.
Likewise, I do not intend to address today the International Convention on the Elimination of All Forms of Racial Discrimination or the American Convention on Human Rights. While these two items which appear on your agenda are extremely significant, I wish to emphasize the importance of the Covenants by confining my remarks solely to them: it is these Covenants which, alone, set universally accepted standards for human rights practices in all nations.
I would like briefly to review the substance of each Covenant, and then discuss my reasons for supporting ratification.
First, the Covenant on Civil and Political Rights.