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should not be regarded as an end in itself, but as a means to secure the humane treatment of minors. But this goal may be served equally well by an adequate system of unified courts. With respect to the aims of incarceration, it is unwise to commit the United States to a particular philosophy of punishment, especially one which is increasingly losing its appeal. For these reasons, I should favor the replacement of the proposal quoted by the following:
(a) Reservation: "The United States reserves the right to treat the provisions of paragraphs 4 and 5 of Article 5 relating to the segregation of accused persons from convicted persons, and of minors from adults, as goals to be achieved progressively, rather than through immediate implementation. The United States further reserves the right to subject minors to procedures and penalties applicable to adults, in appropriate cases.
(b) Statement: “The United States understands that paragraph 6 of Article 5 does not preclude the adoption of other essential aims for punishments consisting in deprivation of liberty.
4. Statement: "[The United States understands] that the second sentence of paragraph (7) of Article 7 applies to orders of any competent judicial authority, whether or not issued for fulfillment of duties of support."
The effect of this "understanding” would be to legitimize imprisonment for debt if ordered by a competent judicial authority, which, in this age, is not justifiable. If the Executive merely wished to preserve the power of courts to imprison those who commit the offense of contempt of court, no reservation or statement of understanding would have been necessary, expecially since any system of contempt which does not meet the tests of paragraphs 1 to 6 is hardly worth preserving. The proposed statement should not be adopted.
5. Statement: “The United States understands that subparagraph (2) (t) of Article 8 does not require the provision of court-appointed counsel for petty offenses for which imprisonment will not be imposed or when the defendant is financially able to retain counsel; it further understands that subparagraph (2)(f) does not forbid requiring an indigent defendant to make a showing that the witness is necessary in order for his attendance to be compelled by the court. The United States understands that the prohibition on double jeopardy contained in paragraph (4) is applicable only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, which is seeking a new trial for the same cause."
I have no opinion with regard to the first sentence of the quoted text. As to the second, I am opposed to it because it tends to preserve an unfair principle.
6. Reservation: “The United States does not adhere to the third sentence of Article 9.”
This reservation is not required either by the Constitution or by the national interest. On its merits, the principle of the retroactive effect of more benign laws seems more humane than the principle of the continuing validity of harsher penalties. In my view, the proposal should not be adopted.
7. Statement: "[The United States understands) that the United States Code, Title 28, $$ 1495 and 2513, meets the requirements of Article 10.”
This statement of understanding appears unnecessary, because Article 10 is cast in very broad terms, which easily accommodate the provisions of 28 U.S.C. $8 1495 and 2513. If this were not the case, then the Convention should serve as a spur for legislative reform. In my view, the proposed statement should not be adopted.
8. Reservation: “The United States reserves the right to permit prior restraints in strictly defined circumstances where the right to judicial review is immediately available; the United States does not adhere to paragraph (5) of Article 13.”
The two clauses of this proposal should be treated separately. The problem of prior censorship is exceedingly complex. In principle, the Constitution does not require prior censorship or restraint, but there may be exceptions relating to the obligations of the government to provide a fair trial, and to protect national security in time of war. These two cases also constitute areas in which prior restraint seems to be authorized by the Constitution.30 Now, the practice of censorship in time of war or emergency is clearly authorized by Article 27 of the Convention. Prior restraint designed to preserve the fairness of a criminal proceeding should also be deemed authorized by Articles 8(5) and 32. It is well-known, however, that the Supreme Court has refused to foreclose applying the prior restraint doctrine to additional situations. The most important of these additional cases may be prior restraint in the interest of national security in time of peace, that is to say, in those times when the Suspension of Guarántees Clause would not apply. In my view, these cases of prior censorship would be authorized by the general security of all” limitations clause of Article 32(2). The combined effects of Articles 27, 29, and 32 should permit the United States to develop a. doctrine of prior restraint consistent with the traditional primacy given freedom of expression in American public policy. Therefore, no reservation to paragraph 2 of Article 13 is warranted.
30 See New York Times Co. v. United States, 403 U.S. 713 (1971) and Nebraska Press A88N; V: Stuart, 427 U.S. 539 (1976).
The second clause of the proposed reservation refers to paragraph 5 of Article 13. The present text was amended at the initiative of the U.S. delegation, in order to meet the requirements laid down by the Supreme Court in Brandenburg v. Ohio.31 It could be argued, therefore, that this reservation is not required by the Constitution. Whether this is so, or not, paragraph 5 is an undesirable provision, not so much because of its literal sense, but for the chilling effect that implementation may produce. In conclusion I should favor a reservation of the form:
“The United States does not adhere to paragraph (5) of Article 13.”
9. Reservation and Understanding: "The United States does not adhere to paragraph (1) of Article 14, and understands that paragraph (3) of that Article applies only to non-governmental entities.”
Whatever the nature of the rights of media owners, it is obvious that the right of reply constitutes a restriction on their scope. Two types of problems arise here: (a) whether such a restriction is constitutionally permissible (or required); and (b) if so, to what extent it may (or must) be imposed.
In Red Lion Broadcasting Co v. F.C.C.,32 the Supreme Court decided that the “fairness doctrine” (which is a form of restriction of the media owners' rights) was constitutionally permissible. It is not certain whether this decision implies that such a doctrine is required by the Constitution. In any event, paragraph 1 of Article 14 would require the United States to enact some version of the fairness doctrine, that is, to impose some restrictions on the rights of media owners. This would prevent the Court from overruling Red Lion (as it suggested it might do, if the fairness doctrine resulted in a lesser coverage of controversial issues) without violating the Convention. For this reason alone I find Article 14(1) undesirable, even though it may not be in conflict with current views on the Constitution.
Second, the State Department correctly notes that the scope of the restriction imposed by Article 14(1) is greater than the one created by the fairness doctrine. If nothing more restrictive than the “fairness doctrine” was validated by Red Lion, the difference in scope just mentioned would make paragraph 1 inconsistent with the Constitution.
In sum, a reservation to paragraph 1 is quite justified. But since paragraph 2 is parasitic upon paragraph 1 (because it restricts its meaning), it should also be included in the reservation.
Paragraph 3 contains a salutary rule, particularly as it applies to government publications. The liability of the government as a publisher should be a matter of substantive law, not of immunities or special privileges. The understanding applicable to paragraph 3 should not be adopted.
io. Statement: "The United States considers the provisions of paragraphs (4) and (5) of Article 17 as goals to be achieved progressively rather than through immediate implementation.”
Article 17 presents three areas of potential controversy:(a) the legal regulation of family life; (b) the protection of children in case of divorce; and (c) the equality of legitimate and illegitimate children.
Paragraph 4 requires some form of legal regulation of family life. So does paragraph 1, if it is taken to be something more than an abstract declaration. But however desirable it may be that both spouses share the responsibilities of family life, these provisions are in potential conflict with the right of privacy guaranteed by the Constitution. In my view, the right of privacy entails that family life is, to a significant extent at least, not an appropriate area of legal regulation. And since the extent of the conflict is almost impossible to identify with any precision, I should favor, as a first choice, not to adhere to the first sentence of paragraph 4, and to interpret paragraph 1 as merely programmatic; as a second choice, to state the understanding that both these provisions state goals to be achieved progressively rather than through immediate implementation.
The second sentence of paragraph 4 lays down a rule which is not in conflict with the Constitution. Moreover, it seems to be consistent with present American law. Therefore, no reservation or understanding is justified.
81 395 U.S. 444 (1969). 32 395 U.S. 367 (1969).
Paragraph 5 is consistent with the most recent trend in constitutional adjudication.33 The remaining cases of discrimination between legitimate and illegitimate children are not required by the Constitution, and are not justifiable on their merits. No reservation or understanding ought to be adopted in relation to this paragraph.
To sum up, I propose to replace the State Department's text by the following:
"The United States does not adhere to the first sentence of paragraph 4 of Article 17, and understands that paragraph 1 of the same Article states goals to be pursued by State Parties within their respective constitutional frameworks.”
11. Statement: "The United States considers that its adherence to the Protocol Relating to the Status of Refugees constitutes compliance with the obligation set forth in paragraph (8) of Article 22.”
Article 33(2) of the Convention Relating to the Status of Refugees, incorporated by reference by Article 1 of the Protocol Relating to the Status of Refugees, provides:
“2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
It should be noted, first, that Paragraph 8 of Article 22 refers to aliens in general, whereas the provision just quoted refers only to refugees. Second, the Protocol creates an exception to the general rule of non-expulsion. Third, it is not by adhering to the Protocol that the United States would comply with the obligation set forth in pargaraph 8, but, in any case, by complying with the obligations imposed by the Protocol. Furthermore, it is not clear whether the rule of the Protocol, which permits the expulsion of refugees in certain circumstances, would prevail over the absolute terms of Article 22(8) of the Convention. In my view, humanitarian considerations make the principles of the Convention preferable to those of the Protocol. The proposed statement should not be adopted.
VIII. ADDITIONAL RESERVATIONS
The right of self-determination, set forth in identical terms by both Articles 1 of the Covenants, is an undesirable provision, not only because its content is highly indeterminate, but also because it is not clear who (or what entity) is the subject of the right, that is, under what conditions an aggregate of individuals constitute a "people” for the purpose of this provision. These uncertainties have led to the formulation of widely divergent interpretation of this text, some of which coincide with traditional American values, some of which are frankly opposed to the national interest.34 Given the open-ended nature of this provision, plus the fact that it will be interpreted by organs where Western views of self-determination will be in a minority, I suggest that the United States refrain from adhering to Article 1. The same could be said of Article 47 of the Covenant on Civil and Political Rights and Article 25 of the Covenant on Economic, Social and Cultural Rights, which by virtue of their drafting history are even more closely tied to Third World views.
I propose, therefore, the following reservation with respect to the Covenant on Civil and Political Right:
“The United States does not ahdere to Article 1 or to Article 47 of this Covenant. The United States reaffirms its commitment to, and support for, the principle of self-determination set forth in the United Nations Charter."
A similar reservation, substituting “Article 25'' for “Article 47" should be adopted for the Covenant on Economic, Social and Cultural Rights.
As a second choice, I should propose to limit the potential scope of Article 1 to the extent of the existing commitments of the United States under the U.N. Charter. This could be achieved by a statement of understanding phrased as follows:
“The United States understands that nothing in Article 1 shall be construed as in any way enlarging or diminishing the scope of the principle of self-determination set forth in the United Nations Charter."
This second proposal is less attractive, not only because it fails to solve the problems of the precise content of the self-determination principle, leaving the
33 Trimble v. Gordon, 430 U.S. 762 (1977).
34 See, in general, Antonio Cassese, “Self-Determination" in Louis Henkin (ed)., The International Bill of Rights: A Guide to Interpretation (forthcoming).
matter to the uncertainties of Charter interpretation, but also because it depends on the subtle point that a right may arise from a principle, as opposed to an inflexible rule.
Paragraph 3 of Article 21 of the American Convention imposes an obligation to enact laws prohibiting “usury and any other form of exploitation of man by
.” While usury laws are in force in many states, there is a wide disparity among them, so that it is by no means certain that all of them would satisfy the treaty provision. Second, even if “usury” is considered to have a reasonably definite meaning, “any other form of exploitation of man by man” is a slogan, not an expression which can give tangible content to a legal obligation. Further, paragraph 3 does not merely authorize restrictions on the freedom of contract (as a form of the right to property) but compels states to enact them. It is unwise to commit the United States to a rigid policy of this type, particularly since an authorizing clause would be enough to legitimize existing usury laws. Finally, usury laws are not even justifiable on their merits. For despite their superficial appeal, they have deleterious effects, not only for the economy as a whole, but also for the disadvantaged class which they are supposed to protect.35 For these reasons, I suggest the following reservation:
“The United States does not adhere to paragraph 3 of Article 21 of this convention."
Should the Committee deem it necessary, I shall be glad to clarify the preceding statement or elaborate my views further.
APPENDIX (Excerpted from Oscar M. Garibaldi, “The General Clauses of the Covenants," forthcoming as part of a study sponsored by the American Society of International Law on the ratification of the Covenants by the United States.)
I. OBLIGATIONS ARISING FROM THE INTERNATIONAL COVENANT ON CIVIL AND
Article 2 of the International Covenant on Civil and Political Rights sets forth, in general terms, the substantive obligations undertaken by the State Parties. These obligations are of three kinds: a basic obligation “to respect and to ensure” the rights recognized in the Covenant (paragraph 1); an additional obligation to take general measures of implementation (paragraph 2); and an additional obligation to provide for measures of implementation in individual cases (paragraph 3). Some of the provisions of Part III also lay down substantive obligations; for instance, under Article 20, paragraph 1, any propaganda for war must be prohibited by law. In addition, according to paragraph 3 of Article 1, the States Parties "shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the United Nations Charter.” The Covenant also imposes procedural obligations, such as the duty to submit reports to the Human Rights Committee. Here we shall consider only the general obligations of Article 2. A. The basic obligation
According to paragraph 1 of Article 2, a State Party must respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This clause specifies the basic obligation, the subjects with regard to whom that obligation is to be discharged and the manner of discharging it.
The basic obligation undertaken by a State Party is “to respect and ensure” the rights set forth in the Covenant. This is nothing but a way of referring, collectively, to the obligations which are the counterparts of the rights in question. To respect a right is, literally, to comply with the corresponding obligation, whereas to ensure the same right is, apparently, to induce others to comply with such obligation, perhaps by means such as (i) enacting the obligation into domestic law, (ii) making it generally applicable, (iii) enforcing it in individual cases, and (iv) providing for a minimum of police measures to prevent violations. For instance, to respect the right defined in Article 7 (first sentence) is, plainly, to refrain from subjecting someone to torture or to cruel, inhuman or degrading treatment of punishment. On the other hand, to ensure the same right is to induce others to refrain from such actions, by the means just described. Most of the rights defined in Part III of this Covenant have corresponding negative obligations. Hence, the State's obligation to respect those rights is fulfilled by inaction. On the contrary, the State's obligation to ensure the rights defined in the Covenant is always positive. In both cases, the subject of the obligations imposed by the Covenant is the contracting State.
36 See Jeremy Bentham, Letters in Defense of Usury, in The Works of Jeremy Bentham (J. Bowring, ed.), 1962, vol. 3, Jarret C. Oeltjen, “Usury: Útilitarian or Useless?”, Florida State University Law Review, vol. 3., p. 169 (1975).
The subject of the rights, i.e., the individuals with respect to whom the State must discharge the basic obligation, are all the individuals who are (i) within the territory of the State and (ii) subject to its jurisdiction. In the system of the Covenant only individual human beings may be subjects of rights (other than the right of self-determination established by Article 1); state action directed against a legal entity would violate the Covenant only to the extent that it violates the rights of the entity's individual members. This provision applies without regard to nationality; it should be remembered that aliens are, in general, subject to the jurisdiction of the State in whose territory they are physically present. For the purposes of this clause, “territory” probably refers to areas within the State's effective control, whether or not such areas are part of the metropolitan territory or are within official and recognized boundaries. Thus, if the U.S. ratifies this treaty, it would apply, barring a reservation, not only to the metropolitan territory but to all areas within the control of the United States, including its overseas possessions and trust territory. B. The obligation to take general measures of implementation
Paragraph 2 of Article 2 provides that “[w]here not already provided for by existing legislative or other measures, each State Party ... undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the ... Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the ... Covenant." This text imposes a conditional obligation to take certain measures to implement the Covenant within the domestic sphere.
The obligations imposed by paragraph 2 are additional to that imposed by paragraph 1. In the first place, paragraph 2 does not state a condition precedent to the application of paragraph 1. Under general international law, the adaptation of municipal law to the requirements of a treaty is not a condition precedent to a State's becoming bound by that treaty, unless the treaty so provides. Paragraph 2 was not intended to modify this general rule; in the absence of a valid reservation, a State which ratifies the Covenant becomes ipso facto bound by paragraph 1 of Article 2 regardless of the state of its domestic law. Furthermore, paragraph 2 does not modify the obligation to respect the defined rights (imposed by paragraph 1), nor does it convey the principle of "progressive implementation” found in Article 2 of the other Covenant. This is quite in accord with the nature of the vast majority of the specific obligations imposed by the treaty: a State is bound to refrain from applying torture even if it has not yet enacted legislation making such action unlawful.
A second group of problems concern the obligation itself. Under general international law, a State is not bound to incorporate a treaty into its domestic legal order, but it may undertake to do so in the same treaty. Quite clearly, paragraph 2 neither mandates nor prohibits the incorporation of the Covenant into municipal law. This matter has been left entirely to each contracting State. The obligation imposed by paragraph 2 is, rather, to adopt such measures as may be necessary to give effect to the rights set forth in the Covenant. Notice, first, that this is a
1 This tentative conclusion is based on an analogy from the law of State responsibility for injuries caused to an alien as a result of internal disturbances. See, e.g., International Law Commission, Yearbook, 1957, ii, pp. 121–123. It is difficult to see how the required measures could go beyond those listed in the text without entering into conflict with the object and purpose of the treaty.
? It follows from this that persons subject to the jurisdiction of a State but not physically present in its territory do not have the right not to be tried in absentia (Article 14, paragraph 3(a), International Covenant on Civil and Political Rights). It has been suggested that this conclusion runs counter to the spirit of the treaty and calls into question a textual interpretation of Article 2, paragraph 1,
3 In other words, there is no norm of customary international law which obligates a State to receive a treaty into its domestic law and, hence, make it internally applicable. Many States—the United States among them-have constitutional (i.e., domestic) rules which provide for the incorporation of treaties into municipal law, subject to varying prerequisites and qualifications. Other states, (e.g., the United Kingdom) incorporate treaties, on a case-by-case basis, through ordinary legislation. For a concise discussion, see Ian Brownlie, Principles of Public International Law, 2d. ed. (Oxford: Clarendon Press, 1973), pp. 43–53. This issue was expressly raised during the preparatory work. See U.N. Doc. A/2929, p. 18, par. 12.
4 The travaux préparatoires show that this was a deliberate choice. See ibid. The Human Rights Committee has acknowledged that the question of incorporation is a matter of domestic law.