Article 14, paragraph 5 Article 14, paragraph 5, shall be without prejudice to the application of existing Italian provisions which, in accordance with the Constitution of the Italian Republic, govern the conduct, at one level only, of proceedings instituted before the Constitutional Court in respect of charges brought against the President of the Republic and its Ministers. Article 15, paragraph 1 With reference to article 15, paragraph 1, last sentence: "If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby", the Italian Republic deems this provision to apply exclusively to cases in progress. Consequently, a person who has already been convicted by a final decision shall not benefit from any provision made by law, subsequent to that decision, for the imposition of a lighter penalty. Article 19, paragraph 3 The provisions of article 19, paragraph 3, are interpreted as being compatible with the existing licensing system for national radio and television and with the restrictions laid down by law for local radio and television companies and for stations relaying foreign programmes. Upon ratification: Reservations "Article 10 NETHERLANDS "The Kingdom of the Netherlands subscribes to the principle set out in paragraph 1 of this article, but it takes the view that ideas about the treatment of prisoners are so liable to change that it does not wish to be bound by the obligations set out in paragraph 2 and paragraph 3 (second sentence) of this article. "Article 12, paragraph 1 "The Kingdom of the Netherlands regards the Netherlands and the Netherlands Antilles as separate territories of a State for the purpose of this provision. "Article 12, paragraphs 2 and 4 "The Kingdom of the Netherlands regards the Netherlands and the Netherlands Antilles as separate countries for the purpose of these provisions. “Article 14, paragraph 3(d) "The Kingdom of the Netherlands reserves the statutory option of removing a person charged with a criminal offence from the courtroom in the interests of the proper conduct of the proceedings. "Article 14, paragraph 5 "The Kingdom of the Netherlands reserves the statutory power of the Supreme Court of the Netherlands to have sole jurisdiction to try certain categories of persons charged with serious offences committed in the discharge of a public office. "Article 14, paragraph 7 "The Kingdom of the Netherlands accepts this provision only insofar as no obligations arise from it further to those set out in article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles as they now apply. They read "1. Except in cases where court decisions are eligible for review, no person may be prosecuted again for an offence in respect of which a court in the Netherlands or the Netherlands Antilles has delivered an irrevocable judgement. "2. If the judgement has been delivered by some other court, the same person may not be prosecuted for the same offence in the case of (I) acquittal or withdrawal of proceedings or (II) conviction followed by complete execution, remission or lapse of the sentence. "Article 19, paragraph 2 "The Kingdom of the Netherlands accepts the provision with the proviso that it shall not present the Kingdom from requiring the licensing of broadcasting, television or cinema enterprises. "Article 20, paragraph 1 "The Kingdom of the Netherlands does not accept the obligation set out in this provision in the case of the Netherlands. "Article 25 (c) "The Kingdom of the Netherlands does not accept this provision in the case of the Netherlands Antilles. Declarations "[The Kingdom of the Netherlands] clarify that although the reservations [. . . ] are partly of an interpretational nature, [it] has preferred reservations to interpretational declarations in all cases, since if the latter form were used doubt might arise concerning whether the text of the Covenant allows for the interpretation put upon it. By using the reservation-form the Kingdom of the Netherlands wishes to ensure in all cases that the relevant obligations arising out of the Covenant will not apply to the Kingdom, or will apply only in the way indicated. "Article 10 "Convicted prisoners serving an actual sentence of less than three months as a rule serve it in a House of Detention. As it is not feasible at present to have very short sentences served only in prisons, a reservation must be entered concerning the provisions of article 10 paragraph 2 (a). "Since the provisions in question were drawn up, major changes have taken place in opinions on the treatment of prisoners; it is increasingly thought that there is a need for a selection criterion based on personality rather than on age. The Kingdom of the Netherlands does not wish to cut itself off from this development by binding itself to the provisions of article 10 paragraph 2 (b) and paragraph 3 (second sentence). "Article 12, paragraphs 1, 2 and 4 "The Kingdom of the Netherlands, a party to the Covenant, consists constitutionally of the countries of the Netherlands and the Netherlands Antilles. "Admission and residence are regulated differently in these two countries. The Kingdom of the Netherlands wishes to establish beyond doubt that article 12 does not imply that legal residence in one of the countries confers a right of entry to the other. "Article 14, paragraph 3 (d) "Legislation of the Kingdom of the Netherlands in general accords with the principles set out in this article regarding the treatment of persons against whom criminal proceedings have been instituted. "On some points, however, the provisions of this legislation do not accord with the precise wording of part of this article. "The provision of article 14 paragraph 3 (d) that everyone must be tried in his presence is also a principle in the legislation of the Kingdom, but there are some exceptions. Under article 292 of the Code of Criminal Procedure of the Netherlands the presiding judge of the court may order a witness to be heard in the absence of the person charged with a criminal offense, provided the person charged is informed immediately of what has taken place in his absence; under article 303 a person charged with a criminal offense who disturbs the silence or order of the court and is warned by the presiding judge to no avail may be removed; under article 304 questions concerning the mental faculties of the person charged may be dealt with in his absence; and under article 500j questions concerning the personality or living conditions of the person charged may be dealt with in his absence. "The Code of Criminal Procedure of the Netherlands Antilles contains provisions to the same effect. The Kingdom of the Netherlands takes the view that these provisions facilitate the proper administration of justice and they should therefore be retained. "Article 14, paragraph 5 "The principle of article 14 paragraph 5 that everyone convicted of a criminal offence must have the right to have his conviction and sentence reviewed by a higher tribunal is also found in the legislation of the Kingdom. Serious offences committed in the discharge of a public office by a specific small group of persons with governmental responsibilities, however, under article 178 of the Constitution are judged by the Supreme Court of the Netherlands as the tribunal having sole jurisdiction. The safeguarding of the individual's rights under the law, which is also the rationale behind article 14 paragraph 5 of the Covenant is here sought in the doubling of the number of judges which the Court normally_comprises (ten instead of five). The prosecution in such cases is undertaken by the Procurator General to the Supreme Court, who, unlike ordinary public prosecutors, is appointed for life and is thus independent of the Government. "Article 14, paragraph 7 "It is not clear whether article 14 paragraph 7 lays down only the national or also the international application of the ne bis in idem principle. Under article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles the national application of the principle is guaranteed but there is some limitation to its international application. The Kingdom of the Netherlands states that it does not wish the application of the ne bis in idem principle to extend any further than under article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles as they now apply. "Article 19, paragraph 2 "Article 10 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states expressly that it (the article) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. A provision of this kind is lacking in article 19 of the Covenant, and there may therefore be doubt concerning whether this Article permits such a licensing system. A reservation has therefore been entered to exclude uncertainty on this point. "Article 20, paragraph 1 "It is extremely difficult to formulate a statutory prohibition of propaganda for war in such a way that excessive infringements of the freedom of expression are avoided. A criminal provision would have to be worded so that it related only to the use of armed violence in conflict with international law. The question is then what sort of violence as such is meant, and this question does not appear to lend itself to adjudication by domestic courts. Moreover, trials on this matter would soon take on a political nature, which should be avoided in general. These considerations and the reservation apply only to the Netherlands. "Article 25 (c) "Article 5 paragraph 3 (e), article 6 paragraphs 3 and 4 and articles 95 and 96 of the Antillean Public Servants' Substantive Law National Regulation contain rules concerning appointment and termination of employment that are less favourable to women than to men. Since these provisions cannot be dispensed with for the time being on economic and social grounds, a reservation has been entered on the matter in the case of the Netherlands Antilles." Senator PELL. I would add here that the Lawyers Committee for International Human Rights recently submitted a critique on the reservations proposed by the Department of State. The committee opposed reservations concerning Federal-State jurisdiction and the non-self-executing nature of the treaties. At this point, without objection, I would submit for the record a copy of this critique. I would ask the Department of State to respond for the record to it. Mr. OWEN. Certainly, sir. We will. THE LAWYERS COMMITTEE FOR INTERNATIONAL HUMAN RIGHTS, New York, N.Y. CRITIQUE OF RESERVATIONS TO THE INTERNATIONAL HUMAN RIGHTS INTRODUCTION In the coming months the United States Senate will consider ratification of several international_treaties dealing with human rights. These treaties were signed by President Carter and transmitted to the Senate on February 23, 1978. They were accompanied by a State Department Letter of Submittal dated December 17, 1977. The State Department's Letter proposed that the Senate attach to the Covenants certain reservations, declarations, and understandings, a number of which we believe would be inappropriate and undesirable. In this critique, we offer specific reactions to the State Department proposals regarding the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the two principal comprehensive agreements. Our comments should also be considered in connection with the other agreements submitted. The critique has two parts. The first part presents some general observations regarding the State Department's position and the American attitude towards ratification. Part Two focuses on the specific provisions contained in Deputy Secretary of State Warren Christopher's December 1977 Letter of Submittal. We note at the outset that it is the responsibility of the Executive Branch, in the first instance, to determine whether the United States should modify a treaty with reservations, declarations, or understandings. The Executive Branch should also be prepared to recommend against Senate ratification of a treaty, if the Senate insists on inappropriate alterations. The purpose of this critique is to assist the Executive Branch in reconsidering these proposals. We recognize that it is the Executive Branch which is in the best position to conduct a systematic provision-by-provision evaluation of each treaty. I. GENERAL COMMENTS The reservations proposed by the Executive Branch reflect three principles. They are: (1) that the United States would not commit itself to do anything that would require change in present law or practice; (2) that the treaties shall not be self-executing, but shall require implementation by legislation; and (3) that subjects which are within the jurisdiction of the states would be excluded from the obligation of the treaties or at least left to implementation by the states. We believe that the three bases of reservation are undesirable, if not improper in principle. Principle One, the notion that the United States would undertake to do only what it is already doing, is anomalous. It has even been suggested that as a general, blanket principle, such a reservation would be invalid, because it is incompatible with the object and purpose of the treaty. The purpose of treaties is to undertake new obligations, in this case to conform U.S. behavior to the international standard. The mere fact that a treaty provision makes a change is not a reason for a reservation. If a particular change is unacceptable on its merits, then a reservation should be entered. One reservation (to Article 20) may be required by the Constitution. One or another change the United States may not be prepared to promise. But there ought to be no general reservation to change. The second principle of reservation is also undesirable. Some provisions in the Covenants, by their character or by their clear import, are not self-executing, and will require implementation by Congress. Others, however, will not, and these can and should be given effect by Executive act or by the courts. There is no reason for insisting that neither the Executive nor the courts should give effect to a treaty until Congress adopts legislation. That would undermine one of the principal reasons why the Constitution made treaties the law of the land, and gave the President and the Senate the power to make such treaties without the consent of the House of Representatives. The "states' rights reservation" is confusing and unnecessary. There are few, if any, matters covered by the human rights covenants that are subject_exclusively to state jurisdiction. Under the fourteenth amendment and other Constitutional provisions, these matters are now subject to the legislative power of Congress and the jurisdiction of the federal courts. Perhaps the reservation is intended to provide that the obligations of the covenants may in some cases be implemented by the states rather than by the federal government. If so, a reservation is unnecessary. Under international law, the United States is free to carry out its obligation by whatever agencies it sees fit, as long as they are carried out. If there is a desire to emphasize that, clearer and more appropriate language can be found. II. ANALYSIS OF SPECIFIC PROVISIONS A. International Covenant on Civil and Political Rights. I. ARTICLE 5, PARAGRAPH (1)—PROHIBITS DEROGATION OF RIGHTS THAT ARE ALREADY PRESENT IN DOMESTIC LAW. A. Proposed Executive Branch Reservation: 50 "The Constitution of the United States and Article 19 of this Covena provisions for the protection of individual rights, including the rig speech, and nothing in this Covenant shall be deemed to require or to legislation or other action by the United States which would restrict th free speech protected by the Constitution, laws, and practice of th States." B. Comments: 1. The proposed reservation is unnecessary. Article 5 of the Covenant 1. "Nothing in the present Covenant may be interpreted as implyin State, group or person any right to engage in any activity or perforr aimed at the destruction of any of the rights and freedoms recognized he their limitations to a greater extent than is provided for in the present 2. There shall be no restriction upon or derogation from any of the fu human rights recognized or existing in any State Party to the present pursuant to law, conventions, regulations or custom on the pretext present Covenant does not recognize such rights or that it recognizes lesser extent." Nothing in the Covenant, then, can be construed or used to restrict The reference to protections of speech by "laws and practice" is un "practice" in particular is highly uncertain. If a particular clause see to restrict a right, e.g. Article 20 prohibiting certain publications, that dealt with specifically. See VII below. C. No reservation or understanding is necessary or desirable. II. ARTICLE 6-LIMITATION ON CIRCUMSTANCES IN WHICH CAPITAI MENT MAY BE IMPOSED. A. Proposed Executive Branch Reservation: "The United States reserves the right to impose capital punishme person duly convicted under existing or future laws permitting the imp capital punishment." B. Comments: 1. The proposed reservation is objectionable. Its purpose can only be the right to execute pregnant women, or children under 18. It would United States position seem ridiculous. 2. Reserving future laws goes even beyond the principle of the reserva require change in existing practice. 3. In fact, accepting this article without any reservation would have effect on current United States practice. C. No reservation or understanding is necessary or desirable. III. ARTICLE 9 PARAGRAPH (5)-GRANTS VICTIMS OF UNLAWFUL A DETENTION AN ENFORCEABLE RIGHT TO COMPENSATION. A. Proposed Executive Branch Reservation: "The United States does not adhere to Paragraph (5) of Article 9. B. Comments: 1. According to Deputy Secretary of State Christopher's letter of this provision "goes beyond current federal law." That is not an approp for a reservation. 2. Under United States law today, victims of unlawful arrest or deter some rights to compensation in some circumstances under 42 U.S.C. S also Bivens v. Six Unknown Named Agents, 403 U.S. 388, 399 (1971). B States law is inadequate in this respect and the Covenant would require t States to enact additional federal or state law to meet the international The change, however, is desirable and would not impose undue burde United States or on the states. C. No reservation or understanding is necessary or desirable. IV. ARTICLE 10-ESTABLISHES STANDARDS FOR THE TREATMENT OF P (1) Paragraph (2) (a) requires the separation of accused from convict requires separation of adults from juveniles. (2) Paragraph (3) provides that the penitentiary system is to "comp ment of prisoners, the essential aim of which shall be their reformation rehabilitation." A. Proposed Executive Branch Statement: "The United States considers the rights enumerated in paragraphs of Article 10 as goals to be achieved progressively rather than through implementation." |