the work he has done and because of the expertise of the organizations he represents which have made enviable advances in the field.

We have very complete representation from the Council of Churches, the U.S. Catholic Conference, and the Lutheran Council, and I would like to congratulate all of these clergymen for testifying. The only reason I mention the Jewish organizations is because I am Jewish and am intimately familiar with the detailed, steady and effective work, of their particular efforts. I am also, of course, very well acquainted with the work of the other groups represented here today. We owe a great debt to the churches which represent, of course, the great preponderance of the population of our country and of the world, for enlisting themselves, as they have, so effectively and with such tremendous influence in this struggle.

I thank the Chair.

SELF-EXECUTING NATURE OF THE TREATY

Professor Lillich, I have one question to ask you.

We are going to great lengths in these matters to include reservations in these treaties, and there are two that interest me greatly. One is the reservation which makes it clear that these treaties are not self-executing.

My question is this. As an authority-and I hope other witnesses who are authorities in the matter will give us their considered judgment on this, including the other witnesses who are yet to testify-if the President in sending us the treaty stipulates as a reservation that the treaty is non-self-executing, in international law, does that or does it not make the treaty non-self-executing so that it could not be properly argued that, notwithstanding the President's request for a reservation, it is, nonetheless, self-executing?

Mr. LILLICH. Senator, may I exercise my professorial role here and make some preliminary remarks before I answer your question as you did?

Senator JAVITS. Certainly.

Mr. LILLICH. First of all, if I may, without undue flattery and as a former constituent, I would like to compliment you on your participation particularly in the hearings on the Genocide Convention. Two years ago, the last time the committee reported out that convention, with the same four understandings which have been on deck since 1971, you made a most eloquent statement in which you said that it made your blood run cold to see the Senate dilly and dally. We have seen very recently, and are seeing right now, acts of massive genocide. I, too, think it is a national disgrace. It makes my blood run cold that the Senate has not taken action on this particular treaty.

As a citizen, I must say that one feels very distressed, extremely distressed, to see, as we sit here today, the lack of concern demonstrated by other Senators with respect to these hearings.

Any suggestions you can make to us, either as individuals or as representatives of universities and groups, as to how we can raise the level of domestic concern about these treaties which, after all, are part of the civil rights package with which we have been concerned in this country for 25 years, I for one, certainly would appreciate.

Senator JAVITS. First, may I thank you very much for your personal remarks. But I think you are being a little unfair to my colleagues. Mr. LILLICH. I knew you would say that.

Senator JAVITS. I think it is true.

I will be leaving this hearing almost immediately to attend a hearing of a once-in-a-lifetime proposition. It is the White House Conference on Libraries. The hearing will take place at a hotel in town because there are so many delegates who will be attending. There are two committees which are going to that hearing.

Senator Zorinsky was very gracious to relieve Senator Pell, who would have presided at this hearing except he is going directly to that White House Conference. I just started a bit earlier, that is all.

There are other Senators with other responsibilities, including a candidacy for President, which is a great American tradition, and which demands that the Senator be away for that purpose. He is entitled to be away for that purpose.

So, I think one must be selective.

Second, and perhaps more to the point, as to your concern about these treaties, I think the situations in Cambodia and Iran-in Tehran, where our hostages are being held, and in Cambodia, where genocide of the Khmer people is right now in progress-are so shocking to the American intelligence that if you, as experts, could connect in an eloquent way those events with these treaties, demonstrate that connection to our people, and demonstrate how the world's attitude might be different, at least the record would be different, so that a standard would be erected to which many nations can be called and some would respond.

I think this is a very crucial time. I can tell you now that if my colleagues will work and cooperate, I will do my utmost, if, as, and when we report out any of these treaties, to try again to report out the Genocide Convention. Perhaps this time we will be successful.

I have been in the Senate alone for 23 years, and I know of no more propitious time to try. So, with humility, because I have been beaten over the head on this matter, and with a special tribute to my hero in this matter, Senator Proxmire of Wisconsin, who every day calls to the Senate's attention our dereliction to Americans and to the human race in not ratifying the Genocide Convention, I think we have reason for some hope.

Thank you very much, Mr. Chairman.

Senator ZORINSKY. Thank you, Senator Javits.

Senator JAVITS. Mr. Lillich, would you now answer my question. Mr. LILLICH. Certainly. I would just like first to take up another point briefly, realizing that I cannot press the professorial prerogative which I have, much further.

Mr. Baldwin's presence today indicates to me very graphically the linkage of civil rights and international human rights which often is not adequately perceived. Really, what we are talking about when we talk about the ratification of these treaties is working for civil rights on an international basis. It is just that. There is a linkage that has not been perceived. There is no doubt also that in certain quarters there is opposition to these conventions. It is not just because they are international, but because what they would be doing, particularly if they have domestic impact, in effect would be to write civil rights legislation or at least put the potential of civil rights legislation into the U.S. statute books.

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Having said that, let me answer as precisely as I can your question. First of all, as I said in my opening remarks, I oppose these declarations saying that the treaties are non-self-executing. I think these declarations may be bad law, but whether or not they are bad law, they certainly represent bad judgment on the part of the President. After all, it is very rare in the history of the United States that the Senate has ratified any kind of treaty with statements that it is non-self-executing.

Generally, and this means in over 95 percent or more of the cases, the matter is left to the courts. As we all know, we have a judiciary which, if not always informed about international law, generally is well briefed and eventually in these cases is able to decide whether particular treaties in their entirety or particular articles in a treaty are or are not self-executing.

I certainly think you would be well advised to leave the matter up to U.S. courts, as you have done in other areas, even other areas in the human rights field, where, for instance, a convention and a protocol dealing with refugees is in litigation right now in the United States. The question of whether or not it is self-executing is being decided by the judiciary.

If you do not do that, in effect you are depriving the courts of the opportunity in certain areas to uplift U.S. law.

I think it is fair to say, although there has been an attempt with these declarations and reservations to restrict the impact of these treaties so that they will not change U.S. law, so that any development in the future would have to come via the legislative process, that if these treaties are ratified, there are certain areas, such as the area of torture and cruel and unusual and degrading treatment, where the treaties go well beyond the provisions of the constitution and may well have substantial domestic impact.

It is for that reason, obviously, as well as the general thrust of the President's Message, which is designed to give these treaties no domestic impact, that these four declarations are suggested.

Specifically to your question of what impact they would have internationally, I would have to say, although I have not made an indepth study of this matter, that they would have almost no impact internationally, that other states would treat us as bound by the provisions of the treaties regardless of what our declarations of intent were. After all, we would have entered into these treaties without reservations on this point. If we do not enter into them with formal reservations, we cannot expect other states to acknowledge our claim that the treaties are non-self-executing merely because we have unilaterally tacked on declarations.

You have been through these arguments in the context of SALT, I

am sure.

I think the more intriguing question is what impact would these declarations have domestically, on the national front. Many of my colleagues, though not ones on today's panel, I believe, have suggested that there might be some constitutional objections to these declarations. I do not think there would be constitutional objections. I think should the Senate wish to attach such declarations, however, the courts would not necessarily be bound by them. They would not be reservations; they would not be part of the treaties; therefore, they would not be the supreme law of the land. Nevertheless, they

would be a very cogent and incisive bit of legislative history to which a court later on interpreting the treaty would certainly refer.

I think these declarations are unfortunate. If we do go into these treaties, they will not change U.S. law very much at all. As I suggested earlier, in certain areas they may uplift it. Let us let the courts decide, as they have in the past, whether a particular article of a particular convention is, or is not, self-executing.

We do not have to take this lock, stock, and barrel. It is not wholehog or nothing. As we have seen in the courts' interpretation of the United Nations Charter, certain articles may be deemed to be selfexecuting and other articles may be deemed not to be self-executing. I would say that I would be happy to have our judiciary make that determination. If we have some movement uplifting U.S. domestic law as a result of the impact of these treaties, I would say fine and I would not apologize for it.

Senator JAVITS. Thank you.

Professor Buergenthal?

Mr. BUERGENTHAL. Mr. Chairman, I would add only two small comments to what Professor Lillich said.

The first has to do with the fact that in the context of the European Convention there is a great deal of experience with the self-executing character of the convention in various European countries which have systems that are very similar to ours.

I did a study on this subject a number of years ago and found that the great fears which some people here have about the consequences of making a human rights treaty non-self-executing are not wellfounded. They have not proven to be well-founded in Europe. On the contrary, it has been found that in countries in which the convention is self-executing, the domestic legal systems have been able to adjust much better to any required international changes and the courts have been able to work much more effectively.

That is my first point.

My other point relates to your question concerning the international impact.

There is one possible international impact, and this is that in some cases it might very well be held by an international forum that a U.S. citizen does not have an obligation to exhaust domestic remedies if the convention is non-self-executing in the United States because then the required judicial remedies may not be available. So, in effect, we are almost inviting a holding making the exhaustion of domestic remedies unnecessary.

Senator JAVITS. And, therefore, other nations would not be bound by our declaration that it is non-self-executing except adversely to us. Mr. BUERGENTHAL. Yes.

I might add, too, that this matter is coming up in a number of international fora, where the argument is made that if you declare an international treaty to be non-self-executing, then it is, in fact, a ery niggardly way of implementing it and you really are not assuming the same obligations as other states. I see this more as a political than a legal argument.

Senator JAVITS. Thank you very much, Mr. Chairman, for your indulgence.

I thank our witnesses, too.

Senator ZORINSKY. Thank you, Senator Javits.

ABSENCE OF U.S. RATIFICATION AFFECT ON OAS

Professor Buergenthal, how does the absence of American ratification affect our relationships with the nations of the Organization of American States?

Mr. BUERGENTHAL. It affects it very seriously, Mr. Chairman, and in a variety of ways.

I have just come back from the OAS meeting at La Paz, where I was one of the two delegates of the court to the General Assembly of the OAS. I found the United States in large measure paralyzed and not being able to promote its own human rights policy because of its nonratification.

The United States was on the defensive when taking a position. Let me give one example. The issue of the budget of the court came up and the United States said that it supports the budget but it felt that it was improper for the United States to push the budget since it was not a party to the Convention. We were told to speak to the Colombian or the Venezuelan representative.

The same situation occurred when we were trying to obtain the adoption of the statutes of the court and commission. Here too, the United States was continuously on the defensive.

Moreover, as one travels in the hemisphere, the failure of the United States to ratify is not viewed the way we view it in the U.S. We may know that we do not violate human rights and therefore do not have to be afraid. We have constitutional problems and legal problems with the treaties. But this is not the way things are viewed abroad. Our failure to ratify is seen as evidence of the fact that we have something to be afraid of, that we tell others to do things that we ourselves are unwilling to do.

Moreover, the position of some Americans-for example, mine-is difficult. I was not nominated to the Court by the United States. The United States could not nominate anyone. I was nominated by Costa Rica and that is a great honor for me. At the same time, I feel like an interloper in that court. I am convinced that Americans on any human rights committee or tribunal would be much more effective in these bodies if they did not have to continuously explain why the United States has not ratified these treaties. Senator ZORINSKY. Thank you.

U.S. SUBMITTING TO INTERNATIONAL SCRUTINY

Mr. Shestack, there are some fears expressed by people in the United States that by ratifying these treaties we would submit to improper and unnecessary international scrutiny. How would you respond to such criticism?

Mr. SHESTACK. Mr. Chairman, I think that to the extent the United States is subject to international scrutiny, it is all to the best. One of the important aspects of ratification of such treaties is it sets standards which we can follow at home to the extent we already do not. The United States traditionally has lived in an open society, a free society, and part of the obligations of that kind of society is to submit ourselves to international scrutiny.

One of the effective aspects of United States advocacy of human rights is, when it is criticized in international fora, it says it will try