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Sciences. Academic performance: First placé in the class (ap. 240 students); grade average in 1963: 10 points on a 0-10 scale. Academic awards: Bearer of the Flag (highest honor); four awards (gold medals and diplomas) to the highest general grade average, and to the highest grade averages in History, Latin, and Physics and Chemistry; Scholarship to the highest general grade average in the academic year 1963.

WRITTEN WORK

"General Limitations on Human Rights: The Principle of Legality", 17 Harvard' International Law Journal 503-557 (1976)

“Exclusive Jurisdiction_and Discretionary Rights: The Scope of the Reserved Domain in the Emerging Law of the Sea," Cambridge, 1976. Manuscript_in_the Harvard Law Library. Will be revised and published when the III UNCLOS arrives at a final text.

"The Carter Doctrine on Human Rights: Questions of Law and Questions of Policy". Paper read at a joint meeting of two committees of the Association of the Bar of the City of New York in June 1977. Serves as a basis for a larger work in progress.

Two reports on legal issues relating to the ratification of human rights treaties: by the United States, June 1978.

"On Rules and Principles". Forthcoming.

"Dualidad", Collage, Spring 1965, p. 57. Essay (fiction), awarded the First, Prize in a literary competition, University of the Pacific, Elbert Covell College, 1965.

FELLOWSHIPS

The first Rómulo Gallagos Fellowship, instituted by the Inter-American Commission on Human Rights to sponsor advanced studies on human rights. (Only one such fellowship is awarded each year) (1974-1975). Fellowship by Harvard University, to sponsor the S.J.D. residence (1975-1976). Grant by the Ford Foundation, described above.

LANGUAGES

English and Spanish: excellent speaking, reading, and writing. French: excellent reading and oral comprehension; non-fluent speaking. Italian and Portuguese: excellent reading and oral comprehension. German and Latin: reading with dictionary.

REFERENCES

Prof. Roger D. Fisher; Prof. Louis B. Sohn; Prof. Abram C. Chayes; Prof. Richard R. Baxter, Harvard Law School, Cambridge, Mass.; Eugene R. Fidell, Esq., LeBoeuf, Lamb, Leiby & MacRae, 1757 N Street, N.W., Washington, D.C.; Dean Roger D. Cramton; Prof. Robert S. Summers; 2nd Prof. Ian R. Macneil, Cornell Law School, Ithaca, N. Y.

PERSONAL

Born on June 22, 1946 in Buenos Aires, Argentina. Status in the U.S.: Permanent Resident. Married to the former Norma L. Blomqvist; one daughter. Excellent health.

STATEMENT OF OSCAR GARIBALDI, PROFESSOR, UNIVERSITY OF VIRGINIA LAW SCHOOL, CHARLOTTESVILLE, VA.

Mr. GARIBALDI. Thank you, Mr. Chairman.

I have a prepared statement which I shall partly read and partly summarize. I trust it will be inserted into the committee record in its entirety.

Senator ZORINSKY. Yes; it will.

Mr. GARIBALDI. I am very grateful to the committee for this opportunity to present my views about ratification of the human rights. treaties by the United States.

In this testimony, I shall express conditional support for the ratification of the American Convention and the Covenant on Civil and Political Rights, and outright opposition to the Covenant on Eco

nomic, Social, and Cultural Rights. I wish to reserve my opinion about the Convention on the Elimination of All Forms of Racial Discrimination.

I propose briefly to discuss the implementation systems of the three treaties and, second, the reasons of substance which support the conclusions just stated.

Since international law contains no implementation procedures of general applicability, the system adopted by a treaty, any treaty, is of great importance, particularly because it serves as a gage of the seriousness with which the state parties view their commitments and the probable effectiveness of the treaty as a whole.

In the special case of the human rights treaties, the implementation procedures are even more consequential. The language in which the human rights treaties are drafted is extremely general, highly vague, and often ambiguous. The precise boundaries of the rights in question depend on indeterminate concepts, such as general welfare, ordre public, public interest, and the like. Therefore, the rights to be protected and, hence, the substantive obligations of the state parties will be dictated in large measure not so much by the texts now before the Senate, but by the interpretations made by the implementing organs.

Judging a system of implementation is like judging the strength of a fortress: It depends not only on how well the bastions are designed, but also on how well they are manned. This suggests that we should take a hard look not merely at the legal procedures established by the treaties, but especially at the likely composition of those bodies which ultimately will determine the scope of our international duties.

In this double sense, the system of implementation set up by the European Convention on Human Rights, by far the best, represents a standard of excellence which we cannot ignore in evaluating the treaties before the Senate.

To summarize the rest of my statement on this part, Mr. Chairman, I believe that the procedure of the American Convention, which is the closest one on paper to that of the European Convention, has the greater potential to become a meaningful system for the implementation of human rights, a system which will make a difference.

On the other hand, I am very skeptical about the effectiveness of the procedures established by the covenants in terms of making a difference in the behavior of states. However, I have no doubt that all of these procedures ultimately are going to result in a body of practice which is going to be taken as fundamentally important to determine the meaning of the treaties.

This is why we should be aware of the impact that the composition of these organs is going to have. In this sense we should remember that the principle of equitable geographical distribution, which applies to the Human Rights Committee insures the presence of members from totalitarian countries.

Let me now summarize the reasons why I conditionally support two treaties and unconditionally oppose the third. I support the American Convention and the Covenant on Civil and Political Rights only if the United States makes a number of reservations, not necessarily those proposed by the administration, designed to make these treaties compatible with some basic principles of American law and foreign policy. The reasons for my support of these two treaties are the following.

First: Although they are far from perfect, these treaties largely are the philosophical offspring of classical liberalism. For the most part, they set limits to governmental power over individuals' lives. They prescribe not what governments should do but what governments may not do.

Second: The language of these treaties, indeed, the language of human rights as a whole, is particularly susceptible to semantic infiltration, that is, the redefinition of a term to serve the purposes of totalitarian doublespeak.

Because of the high emotional appeal of human rights language and its operational function in international law, we cannot afford to abandon these concepts to the enemies of freedom. But this longterm semantic struggle will be waged in the implementation organs set up by these treaties, which argues for a responsible American voice in these fora.

Third: Only the establishment of an appropriate treaty obligation will make it clear that unilateral United States action on behalf of human rights does not violate the principle of nonintervention in domestic affairs.

Finally, if the implementation bodies misconstrue these treaties, it is likely that such misconstructions will weaken, not augment, the parties' obligations. These reasons either do not apply to the Covenant on Economic, Social, and Cultural Rights, or are overridden by other considerations.

I strongly oppose this treaty because of its philosophy, its content, and the danger of misconstruction.

First: It is largely the historical product of the Marxist ideology espoused by the Soviet bloc, coupled with the non-Communist world's postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy.

Second: Viewed in the best possible light, this is a big government treaty which, by virtue of the principle of progressive implementation, would commit the United States to ever-increasing levels of welfare, an ever-increasing governmental control of the economy, and everincreasing restrictions on individual initiative and freedom.

Third: If this treaty is misconstrued, such misconstruction would most likely be in the direction of expanding the duties, mostly affirmative duties, of the states parties.

Thank you, Mr. Chairman.

[Professor Garibaldi's prepared statement follows:]

PREPARED STATEMENT OF PROF. OSCAR GARIBALDI

I am very grateful to the Committee for this opportunity to present my views about the ratification of the human rights treaties by the United States. In this testimony I shall express conditional support for the ratification of the American Convention and the Covenant on Civil and Political Rights, and outright opposition to the Covenant on Economic, Social and Cultural Rights. I wish to reserve my opinion about the Convention on the Elimination of All Forms of Racial Discrimination. These views are not unrelated to the implementation systems of each treaty, but they are not exclusively based on such systems. More precisely, I conditionally support the Covenant on Civil and Political Rights and the American Convention in spite of the fact that their implementation systems are not so strong as it is desirable; and I oppose the other Covenant even though its system of implementation is comparatively weak. I propose briefly to discuss, first, the implementation systems of the three treaties and, second, the reasons of substance which support the conclusions just stated.

Since international law contains no implementation procedures of general applicability, the system adopted by a treaty-any treaty--is of great importance, particularly because it serves as a gauge of the seriousness with which the State Parties view their commitments and the probable effectiveness of the treaty as a whole. In the special case of the human rights treaties, the implementation procedures are even more consequential. The language in which the human rights treaties are drafted is extremely general, highly vague, and often ambiguous. The precise boundaries of the rights in question depend on indeterminate concepts, such as general welfare, ordre public, public interest, and the like. Therefore, the rights to be protected and, hence, the substantive obligations of the State Parties will be dictated, in large measure, not so much by the texts now before the Senate, but by the interpretations made by the implementing organs.

Judging a system of implementation is like judging the strength of a fortress: it depends not only on how well the bastions are designed, but also on how well they are manned. This suggests that we should take a hard look not merely at the legal procedures established by the treaties, but especially at the likely composition of those bodies which will ultimately determine the scope of our international duties.

In this double sense, the system of implementation set up by the European Convention on Human Rights-by far the best-represents a standard of excellence which we cannot ignore in evaluating the treaties before the Senate. Indeed, it is for these reasons that I have suggested that the United States negotiate the opening of the European Convention to accession by all Western democracies, or, as a second choice, conclude a similar treaty with those Western democracies which are not parties to the European system.

The implementation procedures of the American Convention are those which, on paper, more closely resemble the European model. The Court and the Commission are organized as independent bodies of a judicial or quasi-judicial character. However, judging from the political history of many American countries and by the official ideologies of some of the newer ones, it is not a foregone conclusion that the future members of the Commission and the Court will embrace a philosophy of individual freedom, as their European counterparts have largely done. The system of implementation of the American Convention is therefore an open question: its worth will depend on the composition of the organs, their ability to insulate themselves from OAS politics, and their willingness to follow the European models.

The implementation systems of the Covenants are considerably weaker than the European or inter-American systems. They basically consist in the submission of reports, to be considered by the Human Rights Committee or the ECOSOC, with the addition of a voluntary fact-finding and conciliation procedure in the Covenant on Civil and Political Rights. I am very skeptical about the effectiveness of these procedures, if by this we mean their ability to influence the States Parties' conduct. It is true that the Human Rights Committee has been unexpectedly assertive in its first two years of practice, but this is not so much a sign of effectiveness as a reflection on our extremely low expectations.

In any event, these procedures will engender practices, which will significantly contribute to the interpretation of the treaties. In this sense, we should remember that the composition of the Human Rights Committee follows the ubiquitous principle of equitable distribution, which ensures the presence of members from totalitarian and authoritarian countries. As a result, the practice of the Committee already shows attempts to redefine the language of the Covenant on Civil and Political Rights, dilute its standards, and enforce it selectively.

On the other hand, ECOSOC is, and will continue to be, dominated by Third World countries. Given the ideologies of the UN majority, it is quite likely that the ECOSOC will construe the other Covenant expansively, stress economic and social rights at the expense of civil and political rights, and perhaps find in Article 2(1) a treaty obligation to provide foreign aid, or to implement the new international economic order.

Let me now summarize the reasons why I conditionally support two treaties and unconditionally oppose the third. I support the American Convention and the Covenant on Čivil and Political Rights only if the U.S. makes a number of reservations not necessarily those proposed by the Administration-designed to make these treaties compatible with some basic principles of American law and foreign policy. (These reservations will be discussed in a longer statement to be submitted for the record). The reasons for my support of these two treaties are the following. First, although they are far from perfect, these treaties are largely the philosophical offspring of classical liberalism; for the most part, they set limits to governmental

power over individuals' lives, they prescribe not what governments should do, but what governments may not do. Second, the language of these treaties—indeed the language of human rights as a whole-is particularly susceptible to semantic, infiltration, that is, the redefinition of a term to serve the purposes of totalitarian doublespeak. Because of the high emotional appeal of human rights language and its operational function in international law, we cannot afford to abandon these concepts to the enemies of freedom. But this long-term semantic struggle will be waged in the implementation organs set up by these treaties, which argues for a responsible American voice in these fora. Third, only the establishment of an appropriate treaty obligation will make it clear that unilateral U.S. action on behalf of human rights does not violate the principle of non-intervention in the domestic affairs of the target country. Finally, if the implementation bodies misconstrue these treaties, it is likely that such misconstructions will weaken, not augment, the Parties' obligations.

These reasons either to not apply to the Covenant on Economic, Social and Cultural Rights or are overridden by other considerations. I strongly oppose this treaty, because of its philosophy, its content, and the danger of misconstruction. First, it is largely the historical product of the Marxist ideology espoused by the Soviet bloc, coupled with the non-communist world's postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy. Second, viewed in the best possible light, this is a big-government treaty, which-by virtue of the principle of progressive implementation-would commit the United States to ever increasing levels of welfare, an ever increasing governmental control of the eccnomy, and ever increasing restrictions on individual initiative and freedom. Third, if this treaty is misconstrued, it will most likely be in the direction of expanding the duties-mostly affirmative duties of the States Parties.

To conclude, I wish to address myself to some arguments often heard in support of this Covenant. First, it is said that ratifying this treaty is cost-free, because it is a mere statement of goals. This is incorrect. The Covenant does contain legal obligations: a basic obligation to take steps towards the progressive realization of the rights in question, as well as additional obligations which must be implemented in full and at once. Further, in many cases the steps to be takenthe means to achieve the goals-are stated in great detail. Second, it is said that U.S. legislation already incorporates many of the principles laid down by the treaty. This may be true, but is beside the point. For in the present situation, we may freely amend such legislation, change our social goals, or reduce the amount of social services, if they prove too costly, or if they are better provided by private institutions. On the contrary, under the Covenant's principle of progressive implementation, we could not make such changes without violating the treaty; we would be forever pushed along a road which allows no return. Finally, it is said that whether or not this Covenant is ideologically contrary to the American tradition, we should ratify it, if only to show the Third World that we are sensitive to their political concerns. But this is sheer ideological appeasement, neither more justifiable nor more likely to advance the national interest than other forms of appeasement with which we are all too painfully familiar.

Senator ZORINSKY. Thank you, Mr. Garibaldi.
Mr. Lillich, the committee will hear from you next.

STATEMENT OF RICHARD B. LILLICH, PROFESSOR OF LAW, UNI-
VERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE,
VA,

Mr. LILLICH. Thank you, Mr. Chairman.

It is my understanding that our assignment today is to discuss the procedures under the conventions. In 7 minutes I will try to highlight them and perhaps we can come back to them during the discussion. I have three basic points to make.

First, these procedures are relatively weak, some might even say ineffective, but, nevertheless, it is up to the United States to get in and participate in the development not only of the remedies but of the substantive law under all of the conventions that are being considered.

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