based multilateral treaties such as these, it is difficult to infer a common intent among the parties since nations have different practices on this subject. Some, for example, do not consider any treaties as self-executing. In such a situation the intent of the Executive and Senate at the time of ratification become significant and it is their duty to make that intention clear. United States v. Postal, 589 F. 2d 862, 878 (5th Cir. 1979), cert. denied, Oct. 1, 1979, 48 U.S.L. W. 3196.5 We believe that the most reliable method of demonstrating intent is by a declaration at the time of advice and consent. We urge that the Committee, with the recommendations suggested, report favorably on the four human rights treaties. Senator PELL. Thank you very much, indeed. I have a variety of questions which I will try to direct to the appropriate individual. CONTRADICTION BETWEEN PERFORMANCE RECORD AND TREATY SIGNATORIES Ms. Derian, earlier you mentioned how embarrassing it sometimes is within the halls of the United Nations since other nations have signed these treaties and we have not. How do you reply to their questions about this? Is not the reply that our record, when it comes to human rights, is much better than that of many nations who have signed the treaties? How do you handle the apparent contradiction that nations which sign them have a worse performance record than a nation like ours, which has not signed the treaties and has a good performance record? MS. DERIAN. Mr. Chairman, the fact is that this is the type of response I give. I say that you can see not only from the conduct of our Government toward its own citizens, but also from our efforts to implement the provisions of the United Nations Human Rights Declaration in our own foreign policy, our participation in the writing of these covenants, and voting for them within the United Nations system, that we do believe in them. Frankly, this all is diluted by the fact that, while we have worked energetically and diligently on every other aspect of human rights, we have failed to ratify the machinery that makes it possible in the international forum. So we are weakened by it. Many countries take advantage of this. I have a reprint from Novosti, the Soviet agency, which has practically two columns about the United States failure to sign the covenants. Senator PELL. Thank you very much. BLOCKAGE OF IRANIAN FUNDS I understand that at 9 this morning we impounded the various Iranian property accounts in the United States, and I think properly so. Had we signed the treaty, would this be a violation of property rights? Mr. GOLDKLANG. No, not of the Guiland Political Covenant. Senator PELL. Incidentally, in the property we seized, did we seize both government and private property, or just government property? Mr. GOLDKLANG. What the President did actually was not to seize, but to block Iranian Government property and property of government instrumentalities. The order does not cover the property 5 See L. Henkin, Foreign Affairs and the Constitution 159 (1972) ("On numerous occasions, the Senate provided by reservation that the treaty shall not take effect as domestic law but shall be implemented by Congress.") of private Iranian citizens. [Executive Order No. 12170 of November 14, 1979.] Senator PELL. What about the Pahlavi Foundation? Mr. GOLDKLANG. I did not bring with me a copy of the order, but it is designed to block property of the Government of Iran, its instrumentalities, and the Central Bank of Iran. There may be a factual question as to precisely what property that is. The order delegates to the Secretary of the Treasury the duty to carry out the order. It is designed to be effective as of the moment. I believe it was 8:30 when I heard it on the news this morning. I did have something to do with it last night, so I am abreast of the situation. POLITICAL EFFECT IF UNITED STATES DOESN'T RATIFIY TREATIES Senator PELL. Ms. Derian, what are the repercussions if, by the election of the second full committee of 18 members called for by article 28 of the Civil and Political Rights Covenant the United States still has not ratified these treaties? What would be the political effect if we do not ratify them? Ms. DERIAN. I think the effect is that we cannot participate in any of the proceedings. We need to be a part of the machinery for that. The political effect is that essentially we abandon the field to others, some of whom are ardent supporters of human rights and some of whom operate as often as possible in a way that would subvert these rights. We step back in a place where we ought to be full participants. As I said in my testimony, the developments that will be taking place in the near future are going to affect international human rights machinery and standards for years to come. It will be too late if we wait 10 years and then go in and try to undo all of the work of the past. Senator PELL. I believe my next question is addressed both to Mr. Owen and Mr. Goldklang. Will the adherence to Čivil and Political Covenant affect in any way American domestic law? Mr. Goldklang? Mr. GOLDKLANG. No. Because of the declaration that the treaty is non-self-executing, because of the reservations. Senator PELL. Do you think by affixing reservations we may be making an error in that we would be permitting other nations also to affix reservations and reinterpret the covenants according to their own ideologies? Mr. OWEN. The reservations that we have recommended in some cases are absolutely essential in order to avoid conflicts with our own Constitution. As to the other reservations, if the Senate should decide that they are not necessary, I think the administration would be willing to dispense with them. Then we would be, in effect, bringing about a more rigorous civil rights regime and there would be no possible criticism that we were not fulfilling the treaties as a whole. RESERVATIONS BEING PROPOSED TO TREATIES Senator PELL. I know you are more familiar than I am with the three echelons of sanctity of an understanding, a reservation, and an amendment. As I interpret it, an understanding is a unilateral statement, a reservation is a unilateral statement that officially is drawn to the attention of the negotiating party, and an amendment requires actual renegotiation of the document. As I understand it, reservations are being proposed here. This means that each country party to the treaty will have to be officially apprised of our reservations. Is that not correct? Mr. OWEN. They will be apprised of our reservations and they will have an opportunity to make their views known with respect to those reservations. If they, in effect, acquiesce and accept them, then those reservations become a part of our treaty obligation, modify our treaty obligation. If they do not agree with our reservations and feel sufficiently strongly about it, they can refuse to become a state party with us. We then do not have an arrangement with such a state. Senator PELL. How do we notify them-by circular diplomatic note? Mr. OWEN. I believe that the instrument of ratification would contain all of the reservations, and as these documents were deposited with and circulated by the U.N. and OAS, states thereby would become informed as to what our reservations were. Senator PELL. But I do not believe we exchange these documents with each nation. Do we? Mr. OWEN. I am not sure. Senator PELL. I don't think so. Mr. Goldklang, do you know? Mr. GOLDKLANG. Upon advice and consent, we would deposit our instrument of ratification, including our understandings and reservations, with the appropriate depository. In this case it would be the OAS or the United Nations, as appropriate. Under the law of treaties, no distinction is made as to reservations and understandings. Both would be circulated to the other parties by the depository. Some parties might choose to interpret an understanding as really being a reservation. There is a gray area between the two. Each party can then accept or reject the reservations and understandings and decide whether to be in treaty relations with us. If they decide to reject a particular reservation, the particular article does not apply as between the countries. If they accept it, the article, in effect, is rewritten on a reciprocal basis to include the reservation. "REJECTING TREATY RELATIONS" Senator PELL. For the sake of argument, if Tonga took exception and was a signatory party, this would then mean that the convention would be in effect between us and all the signatory nations except for Tonga. Is that correct? Mr. GOLDKLANG. If they merely took exception to a particular reservation, then the convention would be in force as between the United States and that country, except for the one article where they 55-159-80- -4 rejected the reservation. However, if they felt that the cumulative effect of the reservations was incompatible with treaty relations, they could go so far as to say they simply reject treaty relations with us. This is a possibility, though I think it is an extreme one. Senator PELL. When you say "treaty relations," do you mean this particular treaty relation and not all treaty relations? Mr. GOLDKLANG. That's right; just the particular treaty. Mr. GOLDKLANG. Well, I would like to consult with the Assistant Legal Adviser for Treaty Affairs. Mr. OWEN. Mr. Chairman, Mr. Arthur Rovine, who has greater experience in this, probably could answer your question. Senator PELL. Mr. Rovine, would you please come forward. Mr. ROVINE. It has happened, Senator, but it is very rare. It is more likely to happen as between other nations than with us. Very often, it depends on entirely political considerations. For example, Arab nations, when becoming a party to these multilateral conventions, often say that it creates no legal relationships among them and Israel, and there will be no treaty relationship among them. This is entirely political in nature and not because of any specified reservation. I cannot recall, in our experience in recent years, any reservation that we have submitted to a multilateral treaty which has caused another nation to reject treaty relationships with us because of the particular reservation. In the overwhelming number of cases, other nations simply remain silent. They have 1 year, under the law of treaties, to respond. If, within a year, they have not responded, that is taken as acceptance. In most cases, the year goes by without any response of any kind. I might add also that the Western European democracies which have become party to these treaties themselves have submitted long lists of reservations and understandings, and, in fact, nobody has objected to them to this time. Senator PELL. But silence is not always acquiescence, is it? We have learned that in dealing with the Soviets in SALT I. Mr. ROVINE. Yes, Senator, except that in the case of a multilateral treaty, the law requires 1 year's time in which to respond and if there is no response within 1 year, then the nation which has had the opportunity to respond, but has not, has accepted. In this case, silence is taken as acquiescence. Senator PELL. How many years have you been in your present job? Mr. ROVINE. Four years, sir. Senator PELL. In your experience during these 4 years, you do not recall, then, an instance where a nation has said that treaty relations in connection with a particular article will not apply because of the reservation of the United States or another nation? Mr. ROVINE. That's correct with respect to the United States. Senator PELL. Would you research that point for the record for us, going back a few years, say since World War II? We would extend the record to accommodate you in this, if necessary. Mr. ROVINE. Certainly. [The information referred to follows:] Research in the records of the Office of Treaty Affairs has uncovered no instance since World War II in which the formulation of a treaty reservation by the United States has caused another nation to reject relations in the United States in connection with that treaty. In fact, we could find in our records no example of another nation ever registering strong objection to a reservation made by the United States. As far as reservations by other states are concerned, our records unfortunately are inadequate to determine whether such instances have occurred. A number of Western European countries have made extensive reservations to the two Human Rights Covenants, and no objections have yet been registered thereto. Attached, by way of example, are the reservations to the Civil and Political Rights Covenant by Finland, Italy, and the Netherlands. Attachments. Upon ratification: Reservations FINLAND "1. With respect to article 9, paragraph 3, of the Covenant Finland declares that according to the present Finnish legislation the administrative authorities may take decisions concerning arrest or imprisonment, in which event the case is taken up for decision in court only after a certain time lapse; "2. With respect to article 10, paragraph 2(b) and 3, of the Covenant, Finland declares that although juvenile offenders are, as a rule, segregated from adults, it does not deem appropriate to adopt an absolute prohibition not allowing for more flexible arrangements; "3. With respect to article 13 of the Covenant, Finland declares that the article does not correspond to the present Finnish legislation regarding an alien's right to be heard or lodge a complaint in respect of a decision concerning his expulsion; "4. With respect to article 14, paragraph 1, of the Covenant, Finland declares that under Finnish law a sentence can be declared secret if its publication could be an affront to morals or endanger national security; "5. With respect to article 14, paragraph 3(d), of the Covenant, Finland declares that the contents of this paragraph do not correspond to the present legislation in Finland inasmuch as it is a question of the defendant's absolute right to have legal assistance already at the stage of preliminary investigations; "6. With respect to article 14, paragraph 7, of the Covenant, Finland declares that it is going to pursue its present practice, according to which a sentence can be changed to the detriment of the convicted person, if it is established that a member or an official of the court, the prosecutor or the legal counsel have through criminal or fraudulous activities obtained the acquittal of the defendant or a substantially more lenient penalty, or if false evidence has been presented with the same effect, and according to which an aggravated criminal case may be taken up for reconsideration if within a year until then unknown evidence is presented, which would have led to conviction or a substantially more severe penalty; "7. With respect to article 20, paragraph 1, of the Covenant, Finland declares that it will not apply the provisions of this paragraph, this being compatible with the standpoint Finland already expressed at the 16th United Nations General Assembly by voting against the prohibition of propaganda for war, on the grounds that this might endanger the freedom of expression referred in article 19 of the Covenant." ITALY Upon ratification: Article 9, paragraph 5 The Italian Republic, considering that the expression "unlawful arrest or detention" contained in article 9, paragraph 5, could give rise to differences of interpretation, declares that it interprets the aforementioned expression as referring exclusively to cases of arrest or detention contrary to the provisions of article 9, paragraph 1. Article 12, paragraph 4 Article 12, paragraph 4, shall be without prejudice to the application of transitional provision XIII of the Italian Constitution, respecting prohibition of the entry into and sojourn in the national territory of certain members of the House of Savoy. Article 14, paragraph 3 The provisions of article 14, paragraph 3 (d), are deemed to be compatible with existing Italian provisions governing trial of the accused in his presence and determining the cases in which the accused may present his own defence and those in which legal assistance is required. |