3. and 4. A Senate declaration that the substantive provisions of the treaties are non-self-executing would not by itself be legally binding on the courts, although it would probably be accorded great weight. Should the courts determine that the treaties are non-self-executing, then U.S. citizens bringing legal suits alleging human rights violations would not be able to rely directly on the provisions of the treaties. Rather, both they and the courts would look to the U.S. Constitution, legislation, and judicial interpretations thereof as providing the rules for decision. Interpretation of the treaties as non-self-executing could be important in instances where U.S. statutes and the Covenants, while establishing substantially similar rights, are differently worded. Private parties bringing suits and the courts could, of course, refer to the treaties as guides to the proper interpretation of U.S. law if they so wished.

5. When a treaty is non-self-executing, a state party is obligated to adopt legislation or other measures to implement the treaty's provisions to the extent that its domestic law does not already do so. U.S. law already provides for almost all of the rights recognized in the four treaties, and in the few instances where it does not, the Departments of State and Justice have recommended reservations to the treaties. It was felt that any changes in U.S. domestic law in this area should be accomplished through the normal legislative process, including policy consideration by the concerned Congressional committees. Therefore, should the treaties be ratified with the proposed reservations, the United States will not be obligated to adopt new legislation. The language quoted in question 5 is part of a recommended reservation intended to deal with federal-state relationships in U.S. law and does not require (when read together with the foregoing reservations) new implementing legislation.

You have also inquired as to the effect of the absence of an affirmation of the right to own private property in the Covenant on Economic, Social and Cultural Rights. Under international law, any taking of private property must be nondiscriminatory and for a public purpose, and must be accompanied by prompt, adequate and effective compensation. The absence of a private property provision in the Covenant does not contradict or change this customary rule of international law.

In our judgment Article 25 of the Covenant is limited by the foregoing rule. You will note that with respect to Article 2(3) and Article 25 of the Covenant, the Departments of State and Justice have recommended the following declaration: "The United States declares that nothing in the Covenant 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 declaration, which includes a reiteration of Article 17 of the Universal Declaration of Human Rights, would make clear that the United States will become a party to the Covenant only with the understanding that private property rights shall be respected under international law.

It should also be noted that Article 5(2) of the Covenant provides that no derogation from any fundamental rights legally recognized in any country party to the Covenant is permitted simply on the ground that the Covenant does not recognize such rights or recognizes them to a lesser extent. Therefore even if the Covenant did not recognize the right to own private property, it would have no effect upon U.S. law in that regard.

The Fifth Amendment of the Constitution provides that private property is not to be taken for public use "without just compensation." Since under U.S. law treaties may not supersede any provision of the Constitution, Reid v. Covert, 354 U.S. 1 (1957), the absence of an affirmation of the right to own private property in the Covenant cannot have any legal effect in the United States.

Mr. Jack Goldklang, Office of Legal Counsel, Department of Justice, who testified for the Department of Justice on the human rights treaties at the Committee's hearing on November 14, 1979, concurs in this letter.

I hope that these responses to your questions will be helpful, and if we can be of further assistance on these important matters, please do not hesitate to write or call.

Sincerely,

ROBERTS B. OWEN,
Legal Adviser.

Senator PELL. I think Mr. Sklar may have had a comment to make. Mr. SKLAR. Yes, I do, thank you.

I wanted to add a brief word in response to the two questions you raised about Helsinki. One is to the effect of our ratification of the covenants themselves on Eastern Bloc countries. I think one very practical reason that our ratification is so great a help in those situations would be the fact that in addition to the Helsinki followup conference, the enforcement agencies which look to the monitoring of those covenants require reports from the countries on an annual basis, examine deficiencies, make observations and request changes. Those enforcement mechanisms, and the Human Rights Committee in particular, right now are without U.S. participation. Our signature would mean that we would be sitting on those bodies and participating in a process whereby those problems and those issues would be aired. Right now we are denied access to those bodies and to that opportunity.

In terms of the domestic issues, the fact of the existence of very real problems is important. I think the prison conditions situation is a very excellent example of how the covenants can help our processes.

Private groups have filed approximately 35 lawsuits against State penitentiary systems. Federal, district, and State courts have ruled in 17 of those cases and have found violations of our own constitutional system and standards in all 17 of those cases.

The fact is that the process of making those changes is very slow through the court process. Our ratification of the covenants may be one way that we help to bring ourselves up to the point not only of the covenants, but of our own constitutional standards with respect to prison conditions and other areas like that where we are in violation of human rights commitments and standards.

Mr. CAREY. Mr. Chairman, just briefly let me say that the Helsinki Accords do give the United States an opportunity to comment on human rights conditions in East Europe in a way that would not exist in the absence of the Helsinki Accords simply because we are not yet a party to the covenants.

Thank you.

Senator PELL. Thank you very much.

Gentlemen, thank you all very much for being with us.

The committee will hold its final hearing on the human rights conventions on Monday at 9:30 a.m. in this same room. I have to preside at another committee meeting, and I believe Senator Zorinsky will be presiding at that time.

Again, we appreciate very much your testimony today and look forward to receiving your additional comments.

This committee is adjourned until Monday.

[Whereupon, at 12:47 p.m., the committee adjourned, to reconvene at 9:30 a.m., Monday, November 19, 1979.]

INTERNATIONAL HUMAN RIGHTS TREATIES

MONDAY, NOVEMBER 19, 1979

UNITED STATES SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 9:35 a.m., in room 4221, Dirksen Senate Office Building, Hon. Edward Zorinsky presiding. Present: Senators Zorinsky and Javits.

OPENING STATEMENT

Senator ZORINSKY. Good morning.

Today the Senate Committee on Foreign Relations convenes for the fourth and final day to review the four international human rights treaties.

During the hearing this morning, we will hear testimony from three distinguished panels of experts and from Ambassador Donald McHenry.

Because of time constraints, I must ask that all the witnesses limit their oral testimony to no more than 7 minutes. More extensive testimony can be submitted for the record.

At this point I would like to welcome the first panel of witnesses who will discuss the treaties with an emphasis on their implementation systems. I welcome Prof. Richard Lillich, whose plane has been delayed, I understand. He will join the panel upon his arrival from the University of Virginia Law School. I also welcome Dr. John Lawrence Hargrove, Director of Studies of the American Society of International Law; Prof. Oscar Garibaldi of the University of Virginia Law School; and Prof. Thomas Buergenthal of the University of Texas Law School. Professor Buergenthal also is a judge on the InterAmerican Court of Human Rights. The last member of the panel is Mr. Jerome Shestack of the International League for Human Rights in New York.

Would you all please come up to the witness table and be seated. We thank you all for appearing here this morning to enter your testimony.

Let us begin at the far end of the table. Mr. Garibaldi, we would be happy to have you lead off. We will go right down the table for subsequent statements.

[Professor Garibaldi's biographical sketch follows:]

BIOGRAPHICAL SKETCH OF PROF. OSCAR M. GARIBALDI

Address: 11616 Milbern Drive, Potomac, Md.

Professional experience: Lecturer, University of Virginia Law School (1979- ). Subjects: International Law: Selected Problems; Philosophy of Law. Admission to the Bar: District of Columbia: Admitted, January 1979.

Written work: "[Human Rights Policy]: Looking Ahead", Harvard Law School Bulletin, Winter 1979, pp. 36-40. "The General Clauses of the Human Rights Covenants" (provisional title), to be published as part of a larger work on the ratification of the Human Rights Covenants by the United States, sponsored by the American Society of International Law. "The Legal Status of General Assembly Resolutions: Some Conceptual Observations", Proceedings of the American Society of International Law, 1979.

PROFESSIONAL EXPERIENCE

Project Director, Ford Foundation Grant (1978-1979): A one-year research. and writing project at the Havard Law School, designed to produce a comprehensive study in book form of the general limitations clauses of human rights declarations and treaties. Other activities: Panelist in the 1978 International Law Week-End; Member and Rapporteur of the A.S.I.L. Working Group on Ratification of Human Rights Treaties by the United States.

Senior Human Rights Specialist, Inter-American Commission on Human Rights (August-September 1978): Resigned in order to undertake the project

mentioned above.

Visiting Assistant Professor of Law, Cornell Law School (1976-1978): Subjects: International Law, United Nations Law, International Protection of Human Rights, Legal Philosophy, General Theory of Law. Participated in several professional and academic conferences and workshops, among them the 1977 AĀLS Law Teaching Clinic.

Summer Associate, LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C. (1976): Practice involved mostly contract law and administrative law.

Research Assistant (part time), Harvard Law School (1975-1976): Assistant to Prof. Roger D. Fisher (International Law) and to Prof. Arthur von Mehren (Comparative Law).

Teaching Assistant (part time). University of Buenos Aires Law School (1973– 1974): Subjects: Introduction to Law, Constitutional Law II, Philosophy of Law. Partner (previously Associate), Garibaldi, Garibaldi & Garibaldi, Buenos Aires (1971-1974): General non-criminal practice. Emphasis on litigation, bankruptcy and labor law, international business transactions, and radio and television regulation. Law Clerk to Oscar M.A. Garibaldi, Esq. 1969-1971).

ADMISSION TO THE BAR

District of Columbia: Bar examination taken in July 1978. Results not yet available. Buenos Aires, Argentina: Admitted to practice before the courts of the city of Buenos Aires and the Federal courts, 1973.

EDUCATION

Harvard Law School: Candidate to the degree of Doctor of Juridical Science (S.J.D.). Residence completed (1975-1976). Courses: mostly first-year courses of the J.D. program. Dissertation subject is same as that of Ford Foundation project. Degree expected in 1979. Academic performance: Four A's, one A minus, one B plus. Activities: International Law Society, judge in Jessup and Ames competitions. Harvard Law School, LL.M., 1975: Academic performance: Three A pluses, two A's, one B plus, one B. First place in U.N. Law course.

University of Buenos Aires Law School: Candidate to the degree of Doctor of Law and Social Sciences (Specialization in International Law and Jurisprudence). First year of residence completed (1973). Activities: Associate Member of the Argentine Society of Philosophical Analysis; member of the Asociacion de Abogados de Buenos Aires; Assistant Editor, Asociacion de Abogados de Buenos Aires Law Review.

University of Buenos Aires Law School, Procurador (LL.B.), 1971; Abogado (J.D.), 1972: Academic performance: Diploma de Honor; general grade average: 9.50 on a 0-10 scale; fourth place in a class of 623. Academic awards: Law Review (one of the six members of the Board of Editors, Lecciones y Ensayos Law Review); "Sobresaliente Felicitado" (a special grade given in exceptional cases, numerically equivalent to 10, which entails a special congratulation by the examination panel) in Constitutional Law I and in Constitutional Law II. Activities: Member of the M.U.C. (University Centrist Movement).

University of Buenos Aires, Colegio Nacional de Buenos Aires, Bachiller, 1964: A six-year program with emphasis on the Humanities, the Classics, and Social