penitentiary system and the treatment of prisoners, I believe it unwise, as a matter of social policy and national interest, to make a final commitment to what can be regarded as a narrow philosophy of punishment, particularly at a time when such philosophy is being subject to serious questioning. In my view, the proposal should be redrafted in the following way:

(a) Reservation: "The United States reserves the right to treat the provisions of paragraphs (2) and (3) of Article 10 relating to the segregation of accused persons from convicted persons, and of juvenile persons from adults, as goals to be achieved progressively, rather than through immediate implementation."

(b) Statement: "The United States understands that the first sentence of paragraph 3 of Article 10 does not preclude the adoption of other essential aims for the penitentiary system in general and the treatment of prisoners in particular." 5. Statement of understanding: "The United States understands that subparagraphs (3) (b) and (d) of Article 14 do not require the provision of court-appointed counsel when the defendant is financially able to retain counsel or for petty offenses for which imprisonment will not be imposed. The United States further understands that paragraph 3(e) does not forbid requiring an indigent defendant to make a showing that the witness is necessary for his attendance to be compelled by the court. The United States considers that provisions of United States law currently in force constitute compliance with paragraph (6). The United States understands that the prohibition on double jeopardy contained in paragraph (7) 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 three classes of this proposal. With respect to the last clause, it is designed to preserve an unjust principle. In my view, at least the last clause of this statement should not be adopted.

6. Declaration: "The United States declares that the right referred to in Article 47 may be exercised only in accordance with international law.'

The problems to which this declaration is addressed have already been discussed. If the statement of understanding which I have proposed in section V is adopted, this declaration will be unnecessary. I shall later propose a more extensive reservation affecting Article 47 (infra, Section VI). I support the proposed declaration only as a second choice.

7. Reservation: "The United States shall implement all the provisions of the Covenant over whose subject matter the Federal Government exercises legislative and judicial jurisdiction; with respect to the provisions over whose subject matter constituent units exercise jurisdiction, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Covenant." This text has been discussed in Section IV.

8. Declaration: "The United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.'

This proposal has been analyzed in Section III.

B. International covenant on economic, social, and cultural rights

1. Statement: "The United States understands paragraph (1) of Article 2 as establishing that the provisions of Articles 1 through 15 of this Covenant describe goals to be achieved progressively rather than through immediate implementation." This statement of understanding would more precisely constitute a reservation, for it clearly aims at changing the character of some provisions (notably Article 8) which call for immediate implementation.27 A question arises whether the obligation to take steps (Article 2, para. 1) would itself become a goal to be achieved progressively. There are good reasons to believe that submitting the principle of progressive implementation itself to progressive implementation would be contrary to the object and purpose of the treaty. With this caveat, which would require a slight reduction in the scope of the text, this reservation is desirable.

2. Declaration: "The United States declares that nothing in the Covenants 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, and that no one shall be arbitrarily deprived of his property.'

This issue has been discussed in Section V. It should be noted here that it is incorrect to say that the right to own property exists "under the Covenant", since the Covenant is silent on the matter.

27 See Appendix.

3. Statement: "The Constitution of the United States and Article 19 of the International Covenant on Civil and Political Rights contain provisions for the protection of individual rights, including the right to free speech, and nothing in this Covenant shall be deemed to require or to authorize legislation or other action by the United States which would restrict the right of free speech protected by the Constitution, laws, and practice of the United States."

For the reasons stated above, (A.1), the following reservation should be adopted instead of the proposed statement:

Reservation: "The United States adheres to this Covenant only to the extent that it does not require or authorize legislation or other action by the United States which would restrict or impair the rights and freedoms protected by the Constitution of the United States, including the rights of free expression, assembly, and association."

4. Reservation: "The United States shall progressively implement all the provisions of the Covenant over whose subject matter the Federal Government exercises legislative and judicial jurisdiction; with respect to the provisions over whose subject matter constituent units exercise jurisdiction, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Covenant."

This proposal has been analyzed in Section IV, above.

5. Declaration: "The United States declares that the provisions of Article 1 through 15 of this Covenant are not self-executing."

This text has been discussed in Section III.

C. American Convention on Human Rights

1. Declaration: "The United States declares that the provisions of Articles 1 through 32 of this Convention are not self-executing.”

This issue has been discussed in Sections II and III above.

2. Reservation: "United States adherence to Article 4 is subject to the Constitution and other law of the United States."

This proposed reservation represents two areas of potential conflict: abortion and the death penalty. With respect to the first, the U.S. delegation interpreted the second phrase of Art. 4(1) as reserving to State Parties "discretion with respect to the content of legislation in the light of their own social developments, experience and similar factors".28 Although the import of that second phrase is far from clear, there are indications in the travaux preparatoires that this text was not regarded as prohibiting lawful abortions. In any event, I consider it preferable to clarify this matter by a reservation, or a statement of understanding, and thus remove the controversy over abortion from the international plane.

While it would be unconstitutional to prohibit abortions absolutely,29 it would not be unconstitutional to abolish the death penalty. I believe, however, that this latter question should be dealt with in much the same fashion as that suggested above. A carefully-worded reservation may remove from the treaty the areas of greater political controversy, and preserve for the United States the desired freedom of action. Such a reservation, however, must not extend to provisions which are consistent with agreed policies and shared values, if not always with the letter of the law. With respect to paragraph 4, I consider it undesirable on its merits, because of the vagueness of the expression "political offenses or related common crimes".

Therefore, I consider the proposed reservation too broad. In its stead, I should propose the following:

(a) Statement: "The United States understands that the second sentence of paragraph 1 of Article 4 does not apply to lawful abortions."

(b) Reservation: "The United States does not adhere to the last sentence of paragraph 2, paragraph 3, or paragraph 4 of Article 4."

3. Statement: "The United States considers the provisions of paragraphs (4) and (6) of Article 5 as goals to be achieved progressively rather than through immediate implementation, and, with respect to paragraph (5), reserves the right in appropriate cases to subject minors to procedures and penalties applicable to adults."

This text should take the form of a reservation, rather than a statement of understanding. The segregation of prisoners depends on the facilities and resources of each community. On the other hand, the institution of special juvenile courts

28 Donald T. Fox, "The American Convention on Human Rights and Prospects for United States Ratification", Human Rights, vol. 3, pp. 243-281 (1973). 29 Roe v. Wade, 410 U.S. 113 (1973).

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. §§ 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

30 See New York Times Co. v. United States, 403 U.S. 713 (1971) and Nebraska Press Assn: v. Stuart, 427 U.S. 539 (1976).

peace, that is to say, in those times when the Suspension of Guarantees 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.

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.

10. 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.

31 395 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).