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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 wer 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
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 partioular 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.
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.
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 to make amends if amends are necessary. It tries to redress obligations, unlike many governments.
So this is not a criticism I would fear. I would think the United States would welcome this as part of its own advocacy of human rights.
Senator ZORINSKY. Thank you.
PREVENTING COMMITTEES FROM BECOMING HEAVILY POLITICIZED
Mr. Hargrove, at this time, when the United Nations is heavily politicized, why should the United States trust that these new committees will not also become heavily politicized?
Mr. HARGROVE. I don't think we should trust that they will not. I think we should do our best to see that they do not. Clearly, the only way we can contribute to that objective is by participating in them.
It is to be observed, I think, that the tendency toward politicization is substantially less in these implementation mechanisms, including even intergovernmental committees, and certainly committees of private, officially designated experts—than is the case with the United Nations General Assembly. As I remarked in my own comments earlier, if we abandon these relatively manageable mechanisms and the substantive principles for whose implementation they are responsible, we will find ourselves in a situation in which the operative standards of human rights in fact will be generated by the conduct of states such as Iran, the Cambodian regime, and Vietnam in the current context, and by the United Nations General Assembly, which virtually is beyond our capacity to influence, in the present juncture of things, in any rational way.
If I could, I would take the opportunity to make a related comment in response to Senator Javits' plea earlier regarding a connection between these covenants and current pressing and alarming problems such as the situation in Cambodia.
I would call your attention to article 11 of the Covenant on Economic, Social, and Cultural Rights which, while not stated in the form of a stirring declaration, nevertheless falls with a hammer-blow of relevance on the Cambodian situation. I personally do not know whether either Cambodia or Vietnam is a party to this covenant. But the principal party in interest, upon whom we do have some leverage, the Soviet Union, certainly is. There is no reason at all why we, as a party to this covenant, could not invoke it against the Soviet Union for being in complicity with a flagrant use of the weapon of starvation against what is, in effect, a large dissident faction within one's own population.
Thank you, sir.
ARTICLE 2(1) OF THE ECONOMIC AND SOCIAL COVENANT Senator ZORINSKY. Professor Garibaldi, you stated in your testimony that article 2(1) of the Economic and Social Covenant might mandate foreign aid or necessitate implementation of a new international economic order. However, the covenant itself, as well as a reservation, states that the rights are to be achieved progressively. In other words, these are goals and not obligations.
How do you relate this to your original comment?
Mr. GARIBALDI. In the first place, I did not make that statement as the favored interpretation. I would not make that interpretation from a judicial point of view if I had to decide.
I was addressing myself to the possibility that the Covenant on Economic, Social, and Cultural Rights might be misinterpreted or misconstrued, judging from the composition of ECOSOC, which is basically the organ entrusted with the application of the treaty.
I would not be surprised if the language of article 2(1) is read as imposing an obligation to provide foreign aid to developing countries or to implement the so-called New International Economic Order.
Second, I do not agree that the covenant only imposes goals or states goals and does not create obligations with respect to the implementation of those goals. On the contrary, there is an obligation to take steps. On top of that, there are some specific obligations which must be implemented immediately, especially those obligations of article 8 and other provisions which specify the steps that must be taken.
Senator ZORINSKY. Thank you.
Before excusing this panel of witnesses, I would like to ask Senator Javits if he has any further questions or comments.
Senator Javits. I just want to thank everyone for appearing here today. They have been very good witnesses, and their testimony has been most interesting and helpful.
Senator ZORINSKY. I would agree.
We are expecting the Honorable Donald McHenry, the U.S. Ambassador to the United Nations, to arrive momentarily. Bi rather than delay our testimony, I would like to call on the second panel. When the Ambassador arrives, we might interrupt the ongoing testimony to hear his presentation. Then we will continue with the testimony of our panel.
So with that understanding, I would like to call upon the Reverend William L. Wipfler, director of the Human Rights Office of the National Council of Churches in Washington; Monsignor Francis Lally, secretary, Department of Social Development and World Peace, U.S. Catholic Conference, Washington, D.C.; Mr. Sidney Liskofsky, director, Division of International Organizations, American Jewish Committee on behalf of National Jewish Community Relations Advisory Council in New York; and Dr. John R. Houck, who is accompanied by Ralston H. Deffenbaugh, Jr., of the Lutheran Council in the U.S.A., located in Washington, D.C.
Gentlemen, please come forward and take seats at the witness table.
Reverend Wipfler, would you please begin.
RIGHTS OFFICE, NATIONAL COUNCIL OF CHURCHES, WASHING-
I serve as the director of the Human Rights Office of the National Council of Churches. The council is an ecumenical organization of 32 Protestant, Episcopal, and Orthodox denominations whose combined membership is over 40 million persons.