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If there are any questions you would like to put to me, I shall attempt to reply to them.
Thank you for your consideration.
PREPARED STATEMENT OF PROFESSOR Louis B. HENKIN Mr. Chairman and members of the subcommittee: My name is Louis Henkin. I hold the title University Professor at Columbia University. Previously I was Harlan Fiske Stone Professor of Constitutional Law and prior to that the Hamilton Fish Professor of International Law and Diplomacy. I appear here by invitation of Senator Church, the Chairman of your Committee. I do not speak on behalf of my University or of any organization. The views I express are my own.
I strongly support United States adherence to the four covenants and coventions which President Carter submitted for the Senate's consent, as well as to the Genocide Convention which has been before the Senate now for more than 30 years. I am deeply opposed, however, to most of the reservations which the Executive Branch has proposed to the four agreements now before you. Most of them are unnecessary and undesirable, indeed 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 that you recommend against attaching most of these reservations. The firmest supporters of United States 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 I offer a copy of the letter and memorandum for the record.
It is not, however, my purpose today to agrue the case for United States adherence to the human rights agreements, or the case against the reservations. Senator Church invited me to “address the issue of whether these treaties, with or without the Administration's proposed reservations, are compatible with the United States 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.”
The Constitutional issues can be disposed of clearly and quickly. With the advice and consent of the Senate, the President can make treaties. (U.S. Constitution, Article II, section 2.) The international agreements before you would be ratified by the United States as treaties. They are wholly proper treaties.
I 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 have already adhered to them; the Convention on the Elimination of Racial Discrimination has more than 100 parties, the international covenants more than 50 each.
If it is necessary once again to prove the obvious Constitutionality and propriety of United States adherence to such agreements, I respectfully refer the Committee to an article I wrote in 1968, "The Constitution, Treaties, and International Human Rights," 116 U. Pa. L. Rev. 1012 (1968). I shall be pleased to pro vide a copy for the record.
It is wholly appropriate under the Constitution for the United States to adhere to all these human rights agreements. Nor are these treaties in any sense inconsistent with “the legal prerogatives of states' rights.” Almost sixty years ago the Supreme Court resolved, yet again, that there are no proper states' rights objections to U.S. adherence to such treaties. At that time, indeed, the court held that the United States can conclude a treaty even on matters on which Congress had no power to legislate. United States adherence to these human rights conventions would be permissible even if their subject matter were not also subject to the legislative power of Congress. Missouri v. Holland (252 U.S. 416 (1920)). In fact, the subjects of the conventions before you are all within the legislative power of Congress. Properly and reasonably construed almost all the provisions of the agreements are already required either by the Constitution or by acts of Congress, and the few that are not already required, could properly be required by Congress. In my view there are no meaningful states' rights issues to concern you.
Of course, treaties are subject to the Bill of Rights. Reid v. Covert (354 U.S. 1 (1957)) (plurality opinion of Black, J.). There is one provision in the International Covenant on Civil and Political Rights which raises serious questions under the first amendment. Article 20 of that Covenant provides:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by law. Unless these provisions were construed to apply only to propaganda that incites to violence or other unlawful action, United States compliance with that provision would violate the first amendment. A reservation to that article is necessary. (That, I believe, is the only reservation that is constitutionally required.)
The implementation of these Conventions would also raise no serious problems. Since the agreements largely require what the United States is already doing under the Constitution and laws of the United States, the United States would be in compliance with almost all of the provisions without the need for special implementation. A few provisions might require implementation by further legislation, and such legislation could be enacted by Congress. Or, some implementation could be left to the States, although the United States would be responsible for making sure that the States act and the provisions are carried out.
I have addressed briefly the principal questions put to me by Senator Church's letter. Fuller answers may be found in the 1968 Article to which I referred. If there are questions you would put to me now I shall attempt to reply to them. Thank you for your consideration. Senator PELL. Thank you for your testimony. Mr. Anderegg, we would be happy to hear from you now. (Professor Anderegg's biographical sketch follows:
BIOGRAPHICAL SKETCH OF PROFESSOR J. PHILIP ANDEREGG Born, Chicago, Ill. A.B. Harvard College, 1939. LL.B. Harvard Law School, 1942. Member of the New York and District of Columbia Bars. Formerly lecturer and adjunct professor of law in Columbia University. Author: "The Patent Cooperation Treaty”, New York Law Forum, vol. 18, pp. 32
to 57 (1972). “The Best Mode Requirement of 35 U.S.C. Section 112”, APLA Quarterly Journal, vol. 6, pp. 219 to 246 (1978).
STATEMENT OF J. PHILIP ANDEREGG, FORMER LECTURER AND
ADJUNCT PROFESSOR OF LAW, COLUMBIA UNIVERSITY, FOREST HILLS, N.Y.
Mr. ANDEREGG. Thank you, Senator.
I am J. Philip Anderegg. I am testifying as an individual in response to an invitation from Senator Church, which no doubt in turn is in response to a request of mine for an opportunity to testify.
I am an attorney at law. I speak only for myself.
I have been requested, like Professor Henkin, to address the question of the compatibility of these treaties with the Constitution of the United States and with the prerogatives of states' rights and the result or the effect of ratification thereof upon implementation of U.S. human rights policies.
I believe that the Racial Discrimination Convention and the U.N. Convention on Economic, Social, and Cultural Rights are open to objection on constitutional grounds because those treaties would compel invasion of liberties or immunities from Government action which are preserved by the Constitution to the American people and to others present on the territory of the United States.
In the Racial Discrimination Convention, article 2, paragraph 1(d) reads:
Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.
I contend that this would invade the freedom of association which is protected by the First Amendment in, for example, the formation of partnerships, of boards of trustees, and the like. I believe that Norwood v. Harrison, 413 U.S. 455 (1973) is a case recognizing the existence of the right of individuals to associate together without their motives being examined as to whether or not racial or other motives are involved in the rejection or selection of applicants.
I am aware that a related matter is under litigation in the State of New York and has not yet been concluded.
In the Covenant on Economic, Social, and Cultural Rights, Article 7(c) reads:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work, wbich insure, in particular: (c) equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.
This is not restricted to employment by state enterprises and I think the result of ratification of this treaty would require the United States to attempt to eradicate nepotism in all enterprises in the United States. I do not believe that lies within the proper power of the government. If a man wants to be a fool and wreck his business by advancing his incompetent son over a more meritorious fellow employee, I think it is his right and liberty to do so. I do not endorse nepotism and I do not endorse racial discrimination in the sense of sheer prejudice. However, I believe that the business of life is living and that we should not examine all our decisions by lawyers or other agents of government.
I believe similarly that the U.N. Covenant on Civil and Political Rights and the American Convention are open to constitutional objections, but on different grounds-on the ground that they invade the right of the States, under article I section 2 and the 17th amendment of the U.S. Constitution, to determine the qualifications of voters for Senators and Representatives.
In the Civil and Political Covenant, the effect of article 2, paragraph 1, and article 25(b) together would be to deny to the States altogether the right to require a literate, or even an oral, knowledge of the English language, a right sustained to them by the Supreme Court in Lassister v. Northampton, 360
U.S. 45 (1959) and still existing in the long run, absent discrimination in violation of the equal protection clause of the 14th amendment, despite the 1965 Voting Rights Act and the 1975 extention thereof.
To the same effect, in my opinion, are articles 1.1 and 23.1(b), taken together, of the American Convention.
Neither of these matters is cured by the reservations, understandings, and declarations which are proposed for the Civil and Political Covenant and for the American Convention. The point I previously made with respect to the Racial Discrimination Convention, as such, perhaps would be cured by the understanding at the bottom of page vi in the pamphlet wherein these treaties have been printed. By “pamphlet” I mean the "Message from the President of the United States
Transmitting Four Treaties Pertaining to Human Rights,” S. Executives C, D, E, and F, 95th Cong.; 2d Sess. .
I also am of the opinion that the Racial Discrimination Convention and the Economic, Social, and Cultural Covenant are open to objection on constitutional grounds as abuses of the treaty power. The effect of those treaties, in my opinion, is to invade and to circumvent the bicameral nature of the national legislature, the Congress, and also the 10th amendment.
Under article 2, section 1(d) of the Racial Discrimination Convention, which I read a moment ago, and unless the understanding pertaining to it at the bottom of page vi of the pamphlet is made effective, and whether or not this Racial Discrimination Convention is self-executing as Professor Henkin and Messrs. Weissbrodt and Lillich apparently want it to be, or whether it must be implemented by Congress in legislation which it will not be enacting freely but under a compulsion to sustain the good name of the United States after ratification of this convention, at least the following changes in American law would have to be made: Title VII of the 1968 Civil Rights Act on equal employment opportunity would have to be extended to all employment, whether or not in industries affecting interstate commerce, and it would have to be extended to all employers and labor organizations, whether they have 15 or more employees or members, as now required, or fewer.
Similarly, title VIII of the 1968 Civil Rights Act on fair housing would have to be amended to eliminate the Mrs. Murphy's exemption on roominghouses having four or fewer apartments, a subject which presently is under debate in both Houses of this Congress under the bills known as the "Fair Housing Amendments Act of 1979" [S. 506, H.R. 2540).
Essentially, all of the substantive clauses of the Economic, Social, and Cultural Covenant, including the one purporting to forbid nepotism, are similar examples, in my opinion, of abuse of the treaty power, imposing requirements not pertaining to the foreign relations of the United States. These matters are not cured because no reservation or understanding proposed for the Economic, Social, and Cultural Covenant touches them in any way.
I submit that, contrary to an argument which Mr. Henkin has made, it is not enough for a treaty to be a treaty under international law in order for it to fall within the treaty power of article II, section 2 of the Constitution. The fact that racial discrimination, poverty, ill health, and crime exist everywhere in the world and that the American people quite properly are interested in those afflictions upon the human condition abroad as well as at home does not put the making of U.S. law on them within the treaty power. Murder is a problem in the United Kingdom as much as it is here. But that does not mean that the President and the Senate can make a treaty with Mrs. Thatcher's government drawing the law of murder, or the law of divorce, for that matter, away from the states and to the Federal Government, and, indeed, cutting the House of Representatives out of it altogether except in the compelled implementation of a commitment made under the treaty power.
Nor, in my opinion, would it make a difference if the United Kingdom not only signed the treaty but assumed a corresponding obligation itself, again contrary to the implication of a position taken by Professor Henkin in his book on "Foreign Affairs and the Constitution, page 143."
Rather, I submit that the treaty power properly extends only to adjusting and managing the relations between the United States and foreign countries where some operative relation is involved, as the status of aliens within each country joining the treaty; or-in what Professor Henkin calls parallel treaties, where the essential function is by the state party to impose obligations on its own citizens—treaties such as those which require U.S. ships to conform to certain safety standards so that they will not founder in the waters of other countries; or, to take the case of Missouri v. Holland, 252 U.S. 416 (1920), so that the population of ducks which spend part of the year in Missouri and part of the year in Canada will not be exterminated to the detriment of the Canadians by unlimited shooting on the part of the fowlers in Missouri.
I do not think that Missouri v. Holland settles this issue in favor of ratification of these treaties and I do not think that it supports the contentions of those who endorse ratification of these treaties.
There is a four sentence passage in the opinion which I request to read to you. It is at page 435 of 252 U.S.:
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with.
I offer the view that of the considerations which are dealt with in that passage of the opinion, it is only the first which is true of the human rights treaties. They do indeed deal with a worldwide interest and perhaps a national interest of the first magnitude. But the other points are not present.
Unless the treaty power is confined by action of the Senate to the making of treaties which actually adjust operation relations of some sort between the United States and foreign nations, as in many respects the human rights treaties do not, then the treaty power can be used, and I think is likely to be used, to destroy the legislative power of Congress and the power of the States.
To come back for a moment to the Racial Discrimination Convention, I contend that, even with the understanding at page vi of the pamphlet, the essence of which is that the United States will take the position that the legislation already on the books is sufficient and that the Equal Employment Opportunity and similar acts do not need to be extended, as I indicated, the Racial Discrimination Convention is open to constitutional objection because it will freeze us in where we are now and require Congress to abdicate the power which it otherwise would have to change the stance of the United States, to raise the threshold from 15 employees to 50, if it should conclude in the future that it is more of a burden on interstate commerce than a benefit to subject the operation of small businesses to examination by the Equal Employment Opportunity Commission.