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COVENANTS MAY HAVE AFFECTED U.S. POLICY TOWARD CHILE
You have been a longtime human rights activist, particularly with regard to Chile. Do you think if these covenants had been in effect for some time, it would have changed or improved American policy vis-a-vis Chile?
Mr. MILLER. The kinds of decisions—and I speak personallythat were made by this Government in its dealings with Chile over the last decade and the kinds of decisions that have been made in Chile as to their own citizens and as to that government's involvement in the murder of Orlando Letelier and Ronnie Moffitt, I do not think these covenants would protect against. Those activities were calculated and were made without any concept of law. So the answer is no.
I think it is very clear that when people carry out the activities which that regime has, it would be much better to be able to join hands with other nations in a unified condemnation, rather than to condemn alone on an ad hoc basis. A willful and flagrant violation of human rights and human law was undertaken by that country. They clearly do not care what the covenants or their own constitution, for that matter, declare when considering the manner in which they treat their citizens.
I would like to believe, however, that our ratifying these conventions would help to establish a meaningful standard. I do not think that is a minor act on the part of this country. The Pinochet regime has made decisions that are far beyond the law.
AMERICAN PRESIDENTS' RELUCTANCE TO SUBMIT TREATIES
Senator PELL. Why do you think it is that, with the exception of President Carter, American Presidents have been reluctant to sign these treaties and submit them to the Senate?
Mr. MILLER. Well, sir, you know the Senate better than I do. I think, traditionally, that people have viewed the signing of any treaty as a relinquishment of sovereignty over our own actions, because we would agree to abide by certain rules and regulations, by certain standards in treaties. Americans do not give us their own rights easily. I think the Senate always has had a conservative voice which suggests that anything like this is a relinquishing of our sovereignty.
Senator PELL. The situation you describe has not changed. My question is why do you think President Carter took the initiative in this where the previous six or seven Presidents did not?
Mr. MILLER. I do not pretend to speak for the President of the United States. But I think it is very clear that this is a matter which is of great personal interest and concern to him. He obviously, at great risk, has pushed for a policy of human rights and the honoring of human dignity. It is very clear that you cannot continue to push that as only the President of the United States. It has to become a policy of this country. These covenants provided a method to establish that policy. I think he also is concerned that it continue when he leaves office.
I think by having these covenants ratified, that continuity will be assured.
It is very clear to me that this is a very strong personal belief on
Senator PELL. There I would agree with you and I think he should be greatly commended for it.
MEANINGFULNESS OF RATIFICATION
Let me come to the next logical question, which is this. Since the Soviet Union and other human rights violator nations already have signed and ratified these covenants, how meaningful is ratification of these covenants?
Mr. MILLER. I think it is very meaningful. I think the act of ratification by a country such as the United States is a very clear and long-lasting statement to the world about the importance that we do place on this.
I think we clearly would be saying that this simply is not just the personal policy of this particular President of the United States. I think our participation in the working committees and the ongoing discussion, in the reviews and the audits of countries' positions in regard to human rights, would take on much greater meaning. Perhaps we would be in a much better position to shape that policy and the determinations as to violations.
Our ratification of these covenants will not change the Soviet Union's determined policy on human rights violations, and it will not change the actions of the Pinochet government and other governments. But it will bring to the forefront the discussion and it will lend credence to those countries which already have ratified these in the interest of pursuing human dignity and human rights. We can do very little about those countries which simply have ratified as a pro forma matter. But if our ratification is in the interest of pursuing these goals, then our voice can be heard in that organization and in the working groups in the shaping of that policy.
If this is a throwaway, then we ought not to lend our voice to it. But if we really mean what these covenants say, we ought to approve them. Let's test the sincerity of the Soviet Union in their signing of this. Was it pro forma for them or do they care about human rights and human dignity?
Senator Pell. I thank you for your strong and compelling testimony.
I would ask if you are any relation to Congressman George Miller who used to work very hard for the metric system?
Mr. MILLER. No; I am not, though I know him very well.
Senator PELL. He is a wonderful man and is a wonderful namesake to have.
Mr. MILLER. The name is helpful as his district is next to mine.
Senator Pell. Our next three witnesses will appear as a panel to discuss constitutional treaty obligations. We will hear from Prof. Louis Henkin of the Columbia University Law School; Mr. J. Philip Anderegg of Forest Hills, N.Y.; and Prof. David Weissbrodt of the University of Minnesota Law School.
Gentlemen, would you please come up to the witness table. I have known Professor Henkin over a period of years and have much admired him. He is one of the foremost, if not the foremost, constitutional expert and human rights expert in our Nation.
I welcome you all, gentlemen. I do not know in which order you would care to begin. Perhaps Professor Henkin, an old friend of the committee, might lead off. [Professor Henkin's biographical sketch follows:]
BIOGRAPHICAL SKETCH OF PROFESSOR LOUIS B. HENKIN University Professor, Columbia University, 1979– Co-Director, Center for the Study of Human Rights, 1978– Member, War and Peace Institute. Member of the Bar of the State of New York and of the Supreme Court of the United States.
OTHER PROFESSIONAL ACTIVITIES Chief Reporter, Restatement of the Foreign Relations Law of the United States
(revised), American Law Institute, 1979 Member, Advisory Committee, U.S. Task Force on Law of the Sea. President, U.S. Institute of Human Rights, 1970Member, Board of Trustees, Cardozo Law School. Member, Board of Directors, Lawyers Committee for International Human
Rights. Member, Board of Advisers, International Project, Center for Law and Social
Policy. Member, Board of Editors, American Journal of International Law, 1967– ;
Co-editor-in-chief, 1978– Member, Board of Editors, Ocean Development and Internal Law Journal,
1973– Member, Board of Editors, Jerusalem Journal, 1976– United States Member, Permanent Court of Arbitration, 1963–1969. Member, Advisory Panel on International Law, Department of State, 1967-1969. Member: Council on Foreign Relations; American Society of International Law
(Vice-Pres. 1974– ); International Law Association, American Branch (VicePres. 1973); American Society of Political and Legal Philosophy; American
Political Science Association; Academy of Political Science. Fellow, American Academy of Arts and Sciences, 1974Born, November 11, 1917. A.B. Yeshiva College, 1937; LL.B. Harvard Law School, 1940; L.H.D. Yeshiva
Bureau of United Nations Affairs, 1948–54.
United Nations Economic and Social Council.
1950. Associate Director, Legislative Drafting Research Fund and Associate to Council
for Atomic Age Studies, Columbia University, 1956–57. Professor of Law, University of Pennsylvania Law School, 1957-62. Professor, Columbia University, 1962– Hamilton Fish Professor of International
Law and Diplomacy, 1963–78; Harlan Fiske Stone Professor of Constitutional
Law, 1978–79; University Professor, 1979– Subjects: Constitutional Law; International Law; Human Rights; Law and Diplo
macy in International Relations; the Law of American Foreign Affairs; the Supreme Court of the United States; Problems in War and Peace; the Law of the Sea.
Arms Control and Inspection in American Law, Columbia University Press, 1958. The Berlin Crisis and the United Nations, Carnegie Endowment for International
Peace, 1959. Law for the Sea's Mineral Resources, Institute for the Study of Science in Human
Affairs, Columbia University, 1968. How Nations Behave: Law and Foreign Policy, Council on Foreign Relations,
ed. Columbia University Press, 1979. Foreign Affairs and the Constitution, Foundation Press, 1972. The Rights of Man Today, Westview Press, 1978. Editor, Arms Control: Issues for the Public, American Assembly, Prentice Hall,
1961. Editor, World Politics and the Jewish Condition, Quadrangle Books. Editor (with W. Friedmann and Oliver J. Lissitzyn), Transnational Law in a
Changing Society, Columbia University Press, 1972. Also, numerous articles in professional journals.
STATEMENT OF PROF. LOUIS B. HENKIN, COLUMBIA UNIVERSITY
SCHOOL OF LAW, NEW YORK, N.Y., AND CODIRECTOR, CENTER
In view of the time strictures I will not indulge in a lengthy identification of myself. A brief one is in my prepared statement. I speak here by invitation of Senator Church. I do not speak on behalf of my university or any organization. The views I express are my own.
Let me say briefly that I strongly support U.S. adherence to the four covenants and conventions which President Carter submitted for the Senate's consent, as well, Senator, as to the Genocide Convention, which has been before the Senate now for more than 30 years, although I realize it is not before your committee at this time.
I am deeply opposed, however, to most of the reservations which the executive branch has proposed for the four agreements now before you. Most of them are unnecessary and undesirable. Indeed, some of them are ignoble and unworthy of us and would largely undermine the important reasons why the United States should adhere to these agreements.
I urge that your committee recommend Senate consent to these international agreements and also that you recommend against attaching most of these reservations.
The firmest supporters of U.S. adherence to the agreements, I believe, are also firmly opposed to most of these reservations. Some of the reasons for this opposition are set forth in a memorandum which the Lawyers Committee for International Human Rights transmitted to Secretary of State Vance on October 15. With your permission, Senator, I should like to offer a copy of that letter and memorandum for the record.
Senator PELL. Without objection, it will be included in the record. The information referred to appears on p. 48.]
Mr. HENKIN. It is not my purpose today, however, to argue the case for U.S. adherence to the human rights agreements or even the case against the reservations.
Senator Church invited me, and I quote from his letter: “to address the issue of whether these treaties, with or without the administration's proposed reservations, are compatible with the U.S. Constitution and the legal prerogatives of states' rights." He asked that I consider also "the effect of ratification of these treaties on the legal implementation of U.S. human rights policies.”
În my view, the constitutional issues can be disposed of clearly and quickly. With the advice and consent of the Senate, the President can make treaties. The international agreements before you would be ratified by the United States as treaties, and I think they are wholly proper treaties.
I should hope that, in 1979, it is no longer necessary to belabor that human rights are appropriate subjects for treaties under the Constitution. The agreements deal with a matter of great international concern, matters which are important to the foreign policy and the foreign relations of the United States. These agreements were prepared under the auspices of the United Nations and, in the case of the American Convention, under the auspices of the Organization of American States; many nations already have adhered to them. The convention on the Elimination of Racial Discrimination has about 100 parties and the international covenants have more than 50 each.
If it were necessary once again to prove the obvious constitutionality and propriety of U.S. adherence to such agreements, I respectfully refer the committee to an article I wrote in 1968, "The Constitution, Treaties, and International Human Rights,” to be found in 116 University of Pennsylvania Law Review at page 1012. I shall be pleased to provide a copy of that for the record. Unfortunately, I do not have many reprints left at this time.
Senator PELL. We will include it in the record. Mr. HENKIN. Thank you very much, Senator. [The information referred to follows: