A good example of this is the Genocide Convention. Since the entire purpose of the Genocide Convention was to get nations to outlaw genocide, we submitted, with that convention, a bill which would make genocide a Federal crime. A prerequisite to our becoming a party to the Convention is the enactment of that statute.

But here, where we have across-the-board requirements in the four treaties that would concern many separate subjects, we thought the better approach was to recommend reservations which would make the treaties consistent with our domestic law. If we do not have these reservations, then, at the time we become a party, we would be in potential violation of at least three of the treaties.

One of them, the Economic, Social, and Cultural Covenant, we read as being a declaration of aims and goals, but the other three seem to require immediate implementation.

We are not suggesting that the only possible policy for the United States and its future legislation is what is represented in our reservations. We thought, however, that rather than get into the collateral issues of whether specific aspects of domestic law should be changed, the best policy would be to recommend these reservations.

I can give a few examples to show how we dealt with that.

The Civil and Political Covenant and the American Convention both require that if, subsequent to the commission of an offense, the law provides for the imposition of a lighter punishment, then a convicted person shall benefit from the change in penalty. Under existing law, Congress can decide whether a reduced penalty should or should not apply to past cases. This is a discretion which Congress now has. Unless the law specifically provides otherwise, a reduction in penalty does not apply to people already convicted for crimes already committed. In addition, we have had difficult questions of interpretation with this article because we have pending before Congress a revision of the Criminal Code which may completely revise the entire sentence structure. Therefore, in this case we recommended that Congress not adhere to these provisions.

Another example is the double jeopardy problem.

Two of the treaties have double jeopardy provisions which appear to prohibit successive trials at the State and Federal levels. We have proposed an understanding which is consistent with our Supreme Court decisions so that a Federal prosecution is not prohibited by an earlier State trial. This is a matter about which civil rights groups feel rather strongly because frequently they are not satisfied, nor is the Federal Government satisfied, with a prosecution or investigation that has taken place at the local level. They come to our Department and say, do something about this. It is because of the way our courts have interpreted the Constitution that we sometimes can do so.

A possible reading of the treaty article would not permit this. Therefore, we have recommended an understanding on this matter.

When you consider the broad range of subjects covered by these treaties, I feel that the effect of the reservations we have recommended is not inconsistent with the purpose and intention of the treaties.

In the last analysis, it really is up to the other nations who read our reservations and understandings to accept or reject them. But I think the importance of the United States becoming a party is so great that they would be quite willing to accept our reservations. They do not really go to the kinds of very basic rights that the treaties are intended to protect.

(2) Another matter about which you indicated concern in your letter of invitation, is the Federal-State relationship. There are treaties, such as the American Convention on Human Rights, which is before you, and the Refugee Protocol, 19 U.S.T. 6223, which have built into them a Federal-State clause, so reservations for that kind of treaty are not necessary; but three of the treaties before you deal with very broad subject matter, and our feeling was we did not want to be inadvertently federalizing additional subjects through the treaty process.

The Supreme Court has held that a treaty can accomplish this, and we wanted to leave the Federal-State relationship unchanged. Therefore, we have recommended a reservation to take care of this problem.

(3) The last principle was that the treaties themselves shall not be effective as domestic law. We have recommended declarations to this effect.

My reading of these treaties is that even without such a declaration, this would be the case. They call for the enactment of legislation and other appropriate measures to carry out the treaty. There are some countries that have no self-executing treaties; consequently, if we choose to view them as non-self-executing, there would be no violation of the object and purpose of the treaties or of our international obligations. Because we already have on the books a very complicated legal system of local, State, and Federal law, we felt it would be better not to have an additional body of self-executing law. If we did, the courts then would be left with the job of trying to see whether differences in language which exist between the treaties and our own laws made a legal difference, and whether the rights that we have here in the United States have been changed.

If one reads through these treaties, one finds that in substance we have, by and large, the rights that are required, but one also sees that the language in the treaties is not necessarily the language that we are familiar with and comfortable with. Therefore, I think it is entirely appropriate that we recommend a declaration and that the Senate adopt a declaration on this matter.

The courts have said that the Senate and the President should make their intentions clear when we become a party to a treaty. Frequently they are asked to pick up the pieces and guess what was meant. In a case like this, with so many broad domestic legal implications, I do not think we can leave this at all ambiguous.

I do want to comment, because it seems quite important, on the private property problem mentioned earlier by Senator Helms. As a strictly legal matter, I do not think it is necessary to have anything at all said on the subject, but I recognize that, as a political matter, it probably is necessary.

The reason I say this is that nothing in any of these treaties purports to restrict or remove the right to property. The Culand Political Covenant states very clearly that it cannot be used to reduce preexisting rights which exist in a party. [Art. 5.2].

We have our own fifth amendment, which says that no one can be deprived of property without due process of the law and that private property cannot be taken for public use without just compensation. The Supreme Court has repeatedly said that, as a matter of our own law, no constitutional right can be reduced by a treaty.

Therefore, both as a matter of the interpretation of the covenant and as a matter of interpretation of our domestic law, I do not see any effect whatsoever on the right of private property.

Let me say that the American Convention, in article 21, does guarantee the right of private property. As I read that article, it could be used in a situation such as the one that was adverted to by an earlier witness. Article 21 says that no one shall be deprived of his property except upon payment of just compensation for reasons of public utility or social interest and in the cases and according to the forms established by law. Consequently, if one of the parties to that convention were to deprive anybody in its territory, either one of its own citizens or an American resident there, of property without complying with this article, there would be just cause to complain and to bring the matter before the appropriate bodies to enforce this convention.

There is another point I want to make.

It was suggested that because the treaties are not self-executing, we will have a need for new legislation. However, we have proposed reservations which, in effect, permit us to rely on our existing Constitution and laws. Therefore, if the package that we have recommended is accepted, we would not need any new legislation.

Thank you.

[Ms. Goldklang's prepared statement follows:]

PREPARED STATEMENT OF JACK M. GOLDKLANG

I am pleased to be able to appear here today to support the four human rights treaties that President Carter sent to the Senate last year. They are the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the American Convention on Human Rights. The first three were drafted under the auspices of the United Nations; the last was prepared by the members of the Organization of American States and is only for OAS members.

All of these treaties were completed some years ago. It was not, however, until President Carter took office that they were transmitted to the Senate and that their ratification became a matter of national policy. These four treaties have been approved by enough of the nations of the world to put them into force. Thus, although we were leaders in the drafting of these documents at the UN and at the OAS, we will only be followers if and when the United States becomes party to them.

It is ironic that this nation, which takes so much pride in its democratic institutions and in its own domestic struggle and achievements in the human rights field, should only now be considering these treaties. To a large extent they embody ideals that we like to think of as typically American. These treaties have not been ratified by the United States and were not sent to the Senate by prior Presidents in part because the notion persists in this country that there are legal obstacles to United States participation in treaties which grant international recognition to human rights. As the representative of the Department of Justice I am here to assure you that, subject to the proposals suggested at the time of transmittal, there are no legal obstacles to our becoming a party to these treaties.

Our participation would be entirely consistent with American tradition. Some may fear that we will be criticized, rightly or wrongly, by the UN or OAS for not living up to our treaty obligations. This is something that we should fear least. We, after all, are used to the give and take of an open society. Anyone is free to see exactly what is going on in the United States. We do not sweep human rights problems under the rug. Becoming a party to the treaties will enable the United States to participate more fully in the human rights dialog at the UN and the OAS. We will have standing to discuss the records of other nations where it is appropriate to do so.

I am not going to attempt to describe the treaties in detail for you. The texts are summarized in the Report of the Secretary of State to the President, and in the statements of the other executive branch witnesses.1 In general, the Racial Discrimination Convention focuses on that subject alone. The Civil and Political Covenant deals in large part with the classic rights that we associate with our own Constitution such as the right to a fair trial (Art. 14), freedom of expression (Art. 19) and freedom from ex post facto laws (Art. 15). The Economic, Social and Cultural Covenant, while it reflects our law and policy, is primarily a statement of goals and refers to "rights," which in our country are more recent in origin. These include matters such as health care (Art. 12) and working conditions (Art. 7). The American Convention is, to a large extent, modeled on the Civil and Political Covenant and includes, for example, protections against arbitrary arrest (Art. 7(3)), coerced confessions (Art. 8(3)), and a guaranty of religious freedom (Art. 12).

Since the treaties deal with issues that are of domestic as well as international concern, we, at the Department of Justice, have examined the question of how they will relate to the American legal system. I think it will be most useful to focus on three basic recommendations regarding this that were made at the time of transmittal: (1) consistency with domestic law; (2) Federal-state relations and (3) the issue of whether the treaties are self-executing.

1. The first is the decision to recommend reservations and understandings is that the treaties would be consistent with our Constitution and domestic law. This position has two aspects. As far as the Constitution is concerned we, of course, have no option. The most effective limit on the treaty making power is that a treaty cannot violate a specific provision of the Constitution. Reid v. Covert, 354 U.S. 1, 16 (1957). If we did not have reservations for constitutional problems the Constitution would still prevail as the law of the United States but we would be in default as far as our international obligations were concerned. Thus such reservations are required. An example of such a problem is Article 4 of the Racial Discrimination Convention. That provision requires that parties "declare an offense punishable by law all dissemination of ideas based on racial superiority or hatred." Although we may deplore the idea of race hatred, we cannot, under the First Amendment, prohibit the mere dissemination of ideas. E.g., Yates v. United States, 354 U.S. 298, 318 (1957). Therefore we have recommended an appropriate reservation to deal with this problem.

Another aspect of the Administration position relates to reservations designed to harmonize the treaty with existing statute and common law. If a treaty differs from existing law we have more than one option. We can change our law rather than submit a reservation to the treaty. The question then arises as to when and how we ought to do this. With the exception of the Economic, Social and Cultural Covenant, the language of these treaties seems to require immediate implementation. Thus, if the law of the United States does not comply with these treaties at the time that we become a party, we may potentially be in violation of the treaty at that time. On the other hand, if we submit a reservation at the time of ratification because of an inconsistency between domestic law and the treaty, we are free to remove the reservation at a future time if our law should change. Having considered the various possibilities it was the Administration's view that we should not view these treaties as an opportunity for making new domestic law in the United States. We are not suggesting that changes are not possible or that we oppose each change as a matter of policy. We simply did not want to divert these hearings into the collateral issue of whether a change was appropriate, particularly since such changes in domestic law may cut across areas for which other congressional committees are responsible.

The memoranda from the Secretary of State which accompany the President's messages set forth suggested language for understandings and reservations and the reasons for them. I am not going to attempt to go through the reservations in detail but shall provide a few examples to illustrate the kinds of problems that we faced and how we dealt with them.

Both the Civil and Political Covenant (Art. 15(1)) and the American Convention (Art. 9) require that if subsequent to the commission of an offense the law provides for the imposition of a lighter punishment, then a convicted person shall benefit from the change in penalty. Under existing law, Congress may decide

1 Four treaties pertaining to Human Rights, Exec. Rpts., C, D, E and F. 95th Cong., 2d sess. (1978).

whether a reduced penalty should apply to past cases. Unless Congress specifically provides otherwise a reduction in penalty does not apply to persons already sentenced or crimes already committed. See 1 U.S.C. § 109; United States v. Kirby, 176 F. 2d 101, 104 (2d Cir. 1949). The treaties would eliminate the discretion of Congress on this subject. Moreover, difficult questions of interpretation could arise in connection with the proposed revision of the Federal criminal code since the entire sentencing system is being substantially revised. We therefore recommended that the United States not adhere to these provisions.

Another example relates to the double jeopardy issue. Two of the treaties include double jeopardy provisions which appear to prohibit successive trials at the state and Federal levels. We have proposed understandings, consistent with Supreme Court decisions,2 so that a Federal prosecution is not prohibited by an earlier state trial. Since the Constitution permits but does not compel the second prosecution, we could, at the Federal level, comply with a more restrictive provision that may be imposed by treaty. The American form of the double jeopardy rule is, however, very important to civil rights groups. When there is a civil rights violation committed and it appears that state officials have not prosecuted vigorously, they come to our Department and ask that we do something about it. It is because of the way that our Courts have interpreted the Constitution that we can sometimes do so.

It may appear that we have submitted a fairly extensive list of reservations and understandings. When, however, one considers the broad range of subjects covered by these treaties it should not be surprising that a country with a complex legal system like the United States should find a moderate number of reservations necessary. We do not believe that they are incompatible with the object and purpose of these treaties. As a matter of treaty law it is the prerogative of each of the other parties to these treaties to accept or reject our reservations based on whether it believes that we have met this test and whether it chooses to maintian treaty relations with us. We believe that in submitting our list we have demonstrated the importance of taking our obligations seriously.

2. A second aspect of our approach to the treaties was to preserve the Federalstate relationship. A landmark case in treaty law is Missouri v. Holland, 252 U.S. 416 (1920). That case held that a treaty could be the basis for enacting federal legislation to carry out the treaty in an area which might otherwise be reserved to the states. Without the treaty clause, the powers of the Federal government under the Constitution are already quite broad. We are sensitive to the possibility that we might be further "federalizing" areas of domestic law by making them the subject of an international agreement. We have therefore proposed reservations for the two UN Covenants and the Race Discrimination Treaty providing that the United States shall implement all the provisions which are subjects of Federal jurisdiction. Concerning state and local affairs, the Federal government's responsibility is solely to take appropriate measures.' ." The latter would presumably involve seeking information from state and local officials and asking cooperation in ending violations. In proposing this reservation, it is our intention therefore that the treaty shall not alter the distribution of power between the Federal government and the states.

3. The third principle we have followed in making recommendations is that the four treaties shall not themselves be effective as domestic law. So that there may be no misunderstanding on this point we have, in each case, proposed that the Senate declare that the substantive provisions of the treaties are not self-executing. Our obligation under international law to comply with the terms of the treaties will not be affected. What this means, however, is that the treaties will not be a source of additional litigation in our own courts. Enforcement will be carried out instead through the review procedures created by the treaties.

We believe, this is a sound policy. Generally speaking, we have, in our domestic law the substance of the rights in these treaties. As you can see, however, the treaty language is often different from our own language. If the treaties were directly enforceable in court, the court would have the difficult job of trying to reconcile how these four treaties fit together with existing Federal, state and local law.

As a legal matter, the question of whether a treaty is self-executing is one of intent. Frequently, no specific intent is expressed and the courts are forced to decide whether the treaty should be enforceable as domestic law. In broadly

2 See Four Treaties Pertaining to Human Rights, supra, at xiii (Civil and Political Covenant, Art. 14), xix (American Convention. Art. 8); Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).

3 Vienna Convention on the Law of Treaties, Art. 19; "Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide," [1951] I.C.J. Rep. 15.

4 The American Convention (Art. 28) includes a similar Federal Clause in its text.