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Whether or not it has influenced the U.S. Government, I do not know. But the fact remains that in transmitting the American Convention to the Senate, the President did not seek authorization to accept the jurisdiction of the Court. It may be that the President's decision was related to the fact that the Convention was not in force and that the Court did not exist at the time when the Convention was transmitted to the Senate. But these considerations no longer apply, and I would respectfully urge that the United States recognize the jurisdiction of the Court. In the U.N., in UNESCO, in ILO, the U.S. has for years strongly deplored-and quite rightly so—the politicization of human rights proceedings. Yet when we have an opportunity to take a dramatic step to depoliticize them by giving a judicial organ the final word, the U.S. dramatically opts against depoliticization.
The failure to accept the jurisdiction of the Court and thus to opt for depoliticization is particularly unwise given the OAS context. The unwillingness of the U.S. to submit itself to the Court's jurisdiction will here be viewed as proof that the U.S. sees human rights as an instrument for political intervention and that it is unwilling to submit to impartial international adjudication in which every nation, large or small, is equal. This argument will be buttressed by pointing to the decision of the U.S. to accept the inter-state complaint machinery-with its interventionist potential—while rejecting recourse to the Court, the body least likely to be subject to political pressure. The U.S. and, for that matter, all democratic nations of the Hemisphere have a vital interest in legitimating and depoliticizing the struggle for human rights and human dignity. That result is not only not achieved, it is significantly set back, when a nation such as the U.S., with its long, strong and enlightened legal tradition, finds it politically necessary to avoid submitting to the jurisdiction of a court.
A final point, which bears on the issue of effective implementation, has to do with the President's recommendation that the Senate declare that the American Convention is non-self-executing. It is not for me to argue the question whether such a declaration is valid as a matter of U.S. constitutional law, but I do respectfully submit that it is most unwise, particularly when applied to the American Convention. Such a declaration, if valid, will deprive U.S. courts of the possibility of applying the Convention. American courts and judges have more experience than those of any other nation in the Americas in dealing with human rights cases. They consequently have an important contribution to make to the development of Hemispheric human rights law-a law which U.S. courts, more than any others, would be able to infuse with the enlightened principles reflected in the American constitutional tradition. By making it impossible for American courts to apply the Convention, the U.S. deprives itself of this important opportunity to participate in the Hemispheric lawmaking process.
Mr. Chairman, the American commitment to human rights and human dignity is a foreign policy asset of immense value. For unlike all the differences in material wealth and ideology that separate us as a nation from the rest of the world, our commitment to human rights reflects the shared aspirations and hopes of mankind everywhere. We cannot afford to cut ourselves off from the legal and institutional framework in which these aspirations are beginning to find expression in international fora. It is therefore both in the interest of the U.S. and human rights in general that the U.S. ratify the human rights treaties before your Committee.
Senator ZORINSKY. Thank you, Professor Buergenthal.
STATEMENT OF JOHN LAWRENCE HARGROVE, DIRECTOR OF
STUDIES, AMERICAN SOCIETY OF INTERNATIONAL LAW, WASHINGTON, D.C., AND LECTURER, JOHNS HOPKINS SCHOOL OF ADVANCED INTERNATIONAL STUDIES
Mr. HARGROVE. Thank you, Mr. Chairman. My colleagues dealt in some detail with the international implementation systems of the four treaties before the committee. Consequently I should like to address briefly the question put to the Senate by the President and the relevance of international implementation of these treaties to that question. That question, of course, is the question of advice and consent to ratification.
I believe it is here, rather than on the point of the effect of these treaties within the United States, that the central policy issue posed by the President's submission arises.
My own view is that the questions that have been discussed in three days of hearings thus far relating to the impact of these treaties in the United States are resolvable, and that the United States can, if it wishes, ratify these treaties without cost to its domestic legal order and with significant, if perhaps modest, benefits.
I hope that these questions, as important as they are, will not obscure what seems to me to be the central policy issue posed by the submission of these treaties.
I would state this central issue as follows: Whether we, as a national society, are willing to bet that broadly multilateral standards respecting the humane conduct of governments with respect to their own citizens, standards which essentially reflect our own values, have any chance of surviving in the sort of world in which we are going to be required to live in the next generation or two-not only to survive, but ultimately to flourish as a permanent and influential fixture on the international system.
Mr. Chairman, the evidence on this proposition, I am afraid we all would have to acknowledge, is, to say the least, mixed. The world confronting us is one which appears to be increasingly fragmented, multipolar, and disordered. It seems to be more frequently harangued by demands on the part of nations to be their own judge in all matters. The results, as we can see even today, range from the disturbing to the hideous.
A fair estimate is that a numerical majority of those wielding effective governmental power in our world at any given time are not merely indifferent to the values embodied in these four treaties, but, in fact, are calculatedly hostile to some of them, certainly to those having to do with political freedoms.
We have to face it. Judged by the standards of human value that are embodied, however imperfectly, in our own national system, the global community of governments has a disturbingly large population of villains and scoundrels, not to mention the occasional nut or murderous fanatic.
Indeed, in such a world the mere existence of these treaties, so broadly subscribed to, is a rather remarkable fact. So far from nitpicking these treaties or other more recent instruments, such as the Helsinki Final Act, because they do not perfectly mirror the concepts of Western liberal democracy, we should marvel that they approach as closely to that ideal as they do.
Mr. Chairman, this brings me to two points which I believe are the nub of the matter. First, if a system of standards, such as those embodied in these treaties, does have a reasonable chance to survive and flourish and to gather strength in the long term, that chance very probably depends directly on our own vigorous participation in the effort.
Second, if we are so to commit ourselves, it is certain that for the foreseeable future we will not find a more promising opportunity than is presented by these treaties, imperfect as they may be. For certainly the three United Nations treaties—and I would think probably the American Convention as well-could not possibly be renegotiated today under terms as favorable as those that are crystallized in the present texts. So, if we allow these treaties to atrophy, and to recede irretrievably into the backwater of political irrelevance, the actual operating standards of human rights that will emerge, from whatever source, are almost certainly to be increasingly regressive.
I hope it will not be regarded as chauvinistic to impute a critical role to the United States in the future evolution of international human rights. It is true, for example, that our Western European allies in a sense have done very well without us in this respect. We owe much to certain Latin American democracies as well. But at the same time, Mr. Chairman, in the world in which the very survival of conditions favorable to Western European democracy is still commonly thought to involve a critical role for the United States, it is too much to expect that the broadly multilateral standards contained in the United Nations treaties can develop the toughness and vigor required for real relevance, particularly in their East-West dimesions, but otherwise as well, without the political commitment of the United States.
We can profit in this respect a great deal from our experience with the Helsinki Final Act, which Ambassador Goldberg, to his great credit, in my view, properly perceived as a job of political institution building, the sine qua non of which was a core of political solidarity in the West. I think this transaction is rather widely misunderstood.
Whatever the Senate's disposition of these treaties may turn out to be, Mr. Chairman, may I observe in closing that we may be sure that our principal spiritual adversaries in matters of human rights, and preeminently the Soviets, will be watching with keen interest. For however much they may exhort us to ratify the United Nations treaties, there can be little doubt that in their secret hearts they devoutly hope we will not.
This is not because they place any substantial value on the pleasure of tweaking our noses with debating points about our nonparticipation in the instruments whose contents we sanctimoniously invoke. Rather, it is because they would deeply fear, indeed, the prospect that the treaty regimes to which they are party, despite their own best efforts to render them anodyne and irrelevant, would begin to gather real and sustained political force.
I am sure they are much more comfortable with a situation in which the high levels of political energy invested by an American President, for example, in ad hoc and bilateral human rights protests, may be dissipated by the attritions of time or changes in the White House, rather than conserved in the form of enhanced effectiveness on the part of some continuing human rights institution.
What they rightly fear is being caught in a web of living law from which they cannot extricate themselves without large cost, but in which they cannot remain without occasionally yielding to pressure for change. So they hope we will stay out.
My own view, Mr. Chairman, is that we as a people should have enough confidence in our own competence, our political acumen, our staying power, and, above all, in the inherent attractive force of cur own basic values, to commit ourselves fully to the task of the sound development of these four regimes. This applies across the board. I see no more reason why we should abandon the interpretation of broad principles of economic, social, and cultural life to our antagonists than that we should abandon the principles of civil liberty to these same people. This is a task for the long haul, and the odds on success may be no better than even. But it is hard to see how we could justify a generation hence having done less than try. So I hope the committee, after due deliberation, will arrive at the same view.
Thank you, Mr. Chairman.
PREPARED STATEMENT OF John LAWRENCE HARGROVE 1 My colleagues have dealt in some detail with the implementation systems of the four treaties, and I should like to talk about how the international implementation of these treaties bears on the question put to the Senate by the President: the question of advice and consent to ratification. For I believe that it is here, rather than on the point of the effect of these treaties within the United States, that the central policy issue posed by the President's submission arises.
I say this because my own view—a view which I think supported by the weight of the last three days of testimony in these hearings—is that the United States can, if it wishes, ratify these treaties without cost to its domestic legal order, and with genuine if perhaps modest benefit. In all probability, moreover, we can do so without branding ourselves, through a superabundance of reservations, as niggardly or timorous or perhaps even disingenuous in our embrace of the treaties' international obligations.
On this latter point, it is agreed on all sides that some reservations would be necessary, certainly in those cases where one of the treaties strikes a balance between contending interests-e.g. the interest in free speech, and the interest in racial non-discrimination-which is offensive to our own constitutional principles. The record is now amply supplied with questions about the need for additional reservations or other conditions upon our adherence, and each of these should be examined in due course with the care and objectivity that befits a decision on any great national commitment. In the process, we should remember that in entering a reservation the United States is availing itself of an integral part of the international law of treaties and by the mere act of reserving does not in any sense set itself against the other parties. But we should equally remember that the making of new national law for the United States through the conclusion of a treaty is an integral part of our constitutional system, and that proposals for creating new law in this way, like proposals for legislation by the Congress, should be evaluated on their substantive merits. I very much hope that discussion of these domestic issues, important as they are, will not obscure our clear perception of the central policy issue before us.
I would state that issue as follows: whether we as a national society are willing to bet that broadly multilateral legal standards respecting the humane conduct of governments toward their own citizens, standards essentially reflective of our own values, can survive in the sort of world in which we are required to live for the next generation or two: not only survive, but ultimately flourish, permanently affixed as a feature of the international system and increasingly influencing the conduct of governments and the evolution of national societies.
Mr. Chairman, the evidence on this proposition is, to say the least, mixed.
The world confronting us is one which appears to be increasingly fragmented, multipolar, and disordered. It seems to be more frequently harangued by national demands to be one's own judge in all things, with results—as we can see even today-ranging from the disturbing to the hideous. A fair estimate is that a numerical majority of those wielding effective governmental power in our world at any given time are not merely indifferent but are in fact calculatedly hostile to many of the values embodied in these four treaties-certainly to those having to do with political freedoms-notwithstanding their formal adherence in many cases to the treaties themselves. Let's face it: judged by the standards of human value embodied in our own national system, whatever its flaws, the global community of governments has a disturbingly large population of villains and scoundrels, not to mention the occasional nut or murderous fanatic.
1 Director of Studies, American Society of International Law, and Lecturer, John Hopkins School of Advanced International Studies. Formerly Assistant Attorney General of Texas, and Senior Adviser for International Law, U.S. Mission to the United Nations. Views are the speaker's own.
Indeed in such a world the mere existence of these treaties, so broadly subscribed to, is a somewhat remarkable fact. So far from nit-picking these, or other, more recent human rights instruments such as the Helsinki Final Act, because they do not perfectly mirror the values of Western liberal democracy, we should marvel that they approach as closely to that ideal as they do. That they do is explained principally by the fact that, having been negotiated over a period of many years, beginning in the case of the two U.N. Convenants in the late forties, they are largely the product of the period of unprecedented political influence enjoyed by the United States in the quarter-century following World War II. This is true despite the fact that we shortsightedly absented ourselves from negotiation on the two Covenants during the fifties. It is true even of the Helsinki Final Act, since that document's most important human rights provisions—found in the opening section of “Principles" which incorporates the Universal Declaration of Human Rights and the two U.N. Covenants-reflect agreements reached years earlier.
This brings me to two points which I believe are the nub of the matter. First: If a system of standards such as those embodied in these treaties has a reasonable chance to survive and gather strength in the long term, that chance very probably depends directly on our own vigorous participation in the effort. Second, if we are so to commit ourselves, it is certain that for the foreseeable future we will not find a more promising opportunity than that presented by these treaties, imperfect as they may be. For certainly the three United Nations treaties—and I would think probably the American Convention as well-could not possibly be renegotiated today on terms as favorable as those now crystallized in the present texts. And, for all the reasons why this is so, if we allow these treaties to atrophy, and to recede irretrievably into the backwater of political irrelevance, the actual operating standards that will emerge~from the practice of states, from UN General Assembly Resolutions or from whatever source-are likely to be increasingly regressive.
I hope I will not be regarded as chauvinistic in imputing a critical role to the United States in the future evolution of international human rights. It is true that we owe the existence of the American Convention, for example, to the initiative of Latin American democracies. In Europe, our Western European allies have, in a sense, done very well without us in this field. Not only have they established within Western Europe a regional system of international human rights law which is currently the world's most advanced, but they are able and energetic participants in the regimes established by the universal treaties, both as governments and in the participation of their private experts. They do not need instruction from us, and it is just conceivable that we might profit by instruction from them. But at the same time, in a world in which the very survival of conditions favorable to Western European democracy is still commonly thought to involve a critical role for the United States, it is too much to expect that the broadly multilateral United Nations treaties can develop the toughness and vigor required for real relevance—in their East-West dimension or otherwise—without the sustained political commitment of the United States. The future of international human rights is tightly bound up with the geopolitical facts of global life.
We can profit a great deal in this connection by our experience thus far with the Helsinki Final Act, and in particular the 1977 Belgrade review conference, the whole point of which I believe has been widely misunderstood. On that occasion, in my opinion, Justice Goldberg, to his very great credit, correctly perceived that the principal aim ought to be to establish and secure a continuing forum in which scrutiny of the human rights conduct of the signatory states, on the basis of the standards already set out by the Final Act, would be legitimized. He saw this as a political job of institution-building, the sine qua non of which was a core of political solidarity in the West.
The Helsinki Final Act is of course importantly different from the treaties now before this Committee. It is not a treaty, it does not deal exclusively with human rights, it differs in the special political circumstances of its negotiation and in the makeup of its signatories. But it is an organic part of the larger system of international human rights standards whose future is significantly at stake in the decision that the Senate will have to make on the treaties. And the political challenge which the four treaties present is similar in important respects to that presented by the human rights aspects of the Final Act.
The treaties present us with four somewhat overlapping regimes of principles and rules, capable of being invoked directly by individual governments in public statements and diplomatic communication, and informally by private individuals and groups. Each treaty also includes formal international implementation mechanisms (two of which the President has not included in his proposal for ratification) involving variously the participation of governments, of private