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B. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
I. ARTICLE 2(1)— PROVIDES THAT EACH STATES PARTY Must TAKE STEPS TO THE MAXIMUM OF ITS AVAILABLE RESOURCES WITH A VIEW TO “ACHIEVING PROGRESSIVELY THE FULL REALIZATION OF THE RIGHTS RECOGNIZED IN THE PRESENT COVENANT BY ALL APPROPRIATE MEANS * * *"
A. Proposed Executive Branch Statement:
"The United States understands paragraph (1) of Article 2 as establishing that the provisions of Articles 1 through 15 of this Covenant describe goals be achieved progressively rather than through immediate implementation.”
"It is also understood that paragraph (1) of Article 2, as well as Article 11, which calls for States Parties to take steps individually and through international cooperation to guard against hunger, import no legally binding obligation to provide aid to foreign countries."
1. This first statement is unnecessary. It merely reiterates what is explicitly stated in Article 2.
2. The second statement is also unnecessary, since there is clearly no such obligation under the Covenant. From excessive caution the statement would assert here, where it is unnecessary, a statement that evokes important political reactions in other contexts.
C. No statement is necessary.
II. ARTICLE 2(2)— FORBIDS DISCRIMINATION WITH REGARD TO THE RIGHTS ENUNCIATED IN THE COVENANT. A. Proposed Executive Branch Understanding:
“United States and international law permit certain limited discrimination against non-nationals in appropriate cases (e.g., ownership of land or of means of communication). It is understood that this paragraph also permits reasonable distinctions based on citizenship.
1. The statement is unnecessary because the understanding has never been doubted by anybody. If used at all it would better be addressed to specific provisions.
C. No understanding is necessary.
III. ARTICLE 2(3)—STIPULATES THAT DEVELOPING COUNTRIES MAY DETERMINE TO WHAT EXTENT THEY WILL GUARANTEE ECONOMIC RIGHTS TO NonNATIONALS.
A. Proposed Executive Branch Declaration and Understanding:
“The United States declares that nothing in the Covenant derogates from the equal obligation of all States to fulfill their responsibilities under international law. The United States understands that under the Covenant everyone has the right to own property alone as well as in association with others, and that no one shall be arbitrarily deprived of his property.”.
Mr. Christopher's letter goes on to explain:“This declaration and understanding will make clear the United States position regarding property rights, and expresses the view of the United States that discrimination by developing countries against non-nationals or actions affecting their property or contractual rights may only be carried out in accordance with the governing rules of international law. Under international law, any taking of private property must be nondiscriminatory and for a public purpose, and must be accompanied by prompt, adequate, and effective compensation.
1. This statement addresses not the obligation of the United States under the Covenant but those of other states, and its legal effect is not obvious. But it reaffirms an important United States position.
C. Proposed Language is unobjectionable and probably desirable.
See discussion of Article 5-International Covenant on Civil and Political Rights.
V. ARTICLES 6 THROUGH 9—THESE PROVISIONS RELATE TO SPECIFIC ECONOMIC RIGHTS.
1. Right to Work-Article 6.
"Some of the standards established under these articles may not readily be translated into legally enforceable rights, while others are in accord with United States policy, but have not yet been fully achieved. It is accordingly important to make clear that these provisions are understood to be goals whose realization will be sought rather than obligations requiring immediate implementation.”
1. The proposed language is unnecessary and perhaps also inappropriate. Its essential point repeats what is explicit in Article 2(1). See p. 13 above. But the proposed language also undercuts the basic character of the Covenant: it does not merely establish goals; it also creates obligations, even if they are to be carried out “progressively” and within the limits of available resources.
C. The proposed language is undesirable; alternative language using the words of Article 2(1) is unnecessary.
VI. ARTICLE 28—No FEDERAL-STATE DISTINCTION.
See discussion of Article 50, International Covenant on Civil and Political Rights, p. 11 above.
VII. GENERAL RESERVATION PROVIDES THAT, RELATING TO ARTICLES 1-15, THE TREATY IS NON-SELF-EXECUTING.
Comment: The rights under this Covenant, to be achieved progressively, are intrinsically non-self-executing, and the proposed reservation is redundant. A few rights, for example, the right to join a trade-union, and to be treated equally in the enjoyment of economic-social-cultural rights—are of different character and require no implementation. There is no reason to make such rights “nonself-executing,” injecting them into the politics of the legislative process, and delaying United States compliance. See discussion of this point in section on International Covenant on Civil and Political Rights.
RESPONSE BY THE DEPARTMENT OF SLATE TO THE “CRITIQUE OF RESERVATIONS
TO THE INTERNATIONAL HUMAN Rights COVENANTS” BY THE LAWYERS COMMITTEE FOR INTERNATIONAL HUMAN RIGHTS
The Lawyers Committee for International Human Rights is critical of three aspects of the Administration's eneral position on reservations to the Human Rights Covenants. The Committee first objects to our approach of recommending a reservation, understanding, or declaration wherever the treaties would internationally commit the United States to obligations which do not currently exist under the U.S. Constitution or domestic law. The Lawyers Committee asserts this to be contrary to what it perceives as the object and purpose of the treaties: that is, to undertake new obligations and to change U.S. law by means of the treaties.
The central purpose of these human rights treaties is to foster international minimum standards for the protection of human rights. If a State's domestic law falls substantially short of those standards, then one way of achieving the treaties' purpose is to change those laws. U.S. law, by and large does not fall short of those standards and in many respects offers more protection than the Covenants. By subjecting our human rights laws and practices to international scrutiny through the treaties' enforcement mechanisms, and by obligating ourselves under international law not to digress from the high level of protection we already offer to the rights of the individual, we in fact do undertake a new international legal obligation, and we demonstrate our strong commitment to the object and purpose of the Covenants.
The provisions of the Covenants do not differ greatly from protections offered under U.S. law. If the United States ratifies these Covenants without reservations in the few instances where they do diverge from U.S. law, the nation assumes an international obligation to adopt legislation to rectify the differences. The Departments of State and Justice recommended reservations in these few instances so as to leave to the federal and state legislatures decisions as to whether such legislative changes should be undertaken. At a time of concern that the Executive Branch excessively encroaches upon legislative prerogatives, it was felt that these issues of domestic policy were best left in the hands of both Houses of Congress and the state legislatures.
The second objection of the Lawyers' Committee is to the recommended declaration that the Covenants are not self-executing. A non-self-executing treaty may be applied by our courts only through domestic laws implementing its provisions. With respect to these human rights treaties, domestic law already encompasses the treaty provisions, and therefore no new implementing legislation is necessary, However, the Covenants and U.S. statutes, while embodying almost identical rights, are not identical in wording. The purpose of the non-self-executing declaration, therefore, is to prevent the subjection of fundamental rights to differing and possibly confusing standards of protection in our courts. This declaration' would have no impact on our international obligations under the Covenants.
The third general criticism by the Lawyers Committee is directed against the recommended federal-state reservation. It is true that most of the rights recognized by the Covenants are plausibly within federal jurisdiction; it is also true that under Missouri v. Holland (252 U.S. 416 (1920)) the Supreme Court found the enactment of federal legislation in a traditionally state matter, enacted on the basis of a treaty, to be constitutional. The Departments of State and Justice want to make clear, however, that they are ne trying to federalize areas of state human rights law or to circumvent the traditional division of competence between the federal and state governments with respect to human rights by way of a treaty. Hence, the federal-state reservation was recommended to cover the few instances where the Covenants touch on exclusively state concerns.
The Lawyers Committee also presents criticisms of recommended reservations, understandings, and declarations to substantive provisions of the Covenants. Since Article 5(1) of each Covenant may indirectly raise the problem of free speech, and Article 20 of the Civil and Political Rights Covenant prohibits certain speech protected by the Constitution, a reservation is required. The Departments recommended a reservation to the effect that nothing therein shall be deemed to restrict the right of free speech protected by the U.Š. Constitution, laws and practice. The Committee criticized the recommended reference to U.S. laws and practice.
There are, however, laws within a few of our states, such as group libel laws, which, while held to be constitutional by the Supreme Court, might be thought in the United States to exert a deleterious influence of freedom of expression. Practice in the United States is moving away from such laws. Were the United States to ratify reserving only as far as the Constitution requires, we might well be subject to criticism by the Human Rights Committee for not enacting such laws, on the ground that our practice of not doing so derogates from the obligation to implement provisions such as Article 20 of the Civil and Political Rights Covenant. To preserve our progressive practices in the area of free speech, the Departments recommended that "law and practice” be included in the reservation.
The Lawyers Committee finds objectionable the suggested reservation to Article 6 of the Civil and Political Rights Covenant in which the United States would reserve the right to inflict capital punishment under U.S. law. The purpose of that reservation, like the other reservations, is to avoid the assumption of an international obligation to meet certain standards which U.S. domestic law does not currently meet. Its purpose was certainly not the preservation of any right to execute children or pregnant women, something never done in the United States.
The Departments have suggested a reservation stating our non-adherence to Article 9(5) of the Civil and Political Rights Covenant granting victims of unlawful arrest a right to compensation. Since this clause goes beyond current federal law, the Departments felt it inappropriate to obligate internationally the federal and state legislatures to pass legislation recognizing this right.
The Lawyers Committee finds the provisions of Article 10 of the same Covenant on the treatment of prisoners to reflect worthwhile policies with which the United States essentially complies, but with which number of communities might have diffculty wholly complying due to funding problems. The Departments do not differ with this assessment, as shown by the statement they have recommended. The language of this statement is broader than that proposed by the Lawyers Committee and covers paragraph 3 of Article 10, relating to the goals of the penitentiary system. While the Departments agree with the Committee that “U.S. prison policies are directed in part toward these goals (of reformation and social rehabilitation),” such goals are not at present necessarily the “essential aim” of the U.S. system, as the Covenant requires.
Article 14 of the Civil and Political Rights Covenant establishes standards for a fair trial. The Departments believe that Article 14 can be read consistently with U.S. law, but it might also be read inconsistently. For instance, Article 14 might be interpreted to require the provision of court-appointed counsel for petty offenses for which imprisonment will not be imposed, or to include in the prohibition upon double jeopardy—which is worded similarly to the prohibition in our Constitution—the trial of the same defendant for the same crime in federal and state courts. Because of this possibility, the Senate may wish to add a reservation, although one is not strictly necessary.
The Departments suggest a reservation to the third clause of Article 15(1) of the Civil and Political Rights Covenant because that provision imposes different requirements from those of the law in several states. It was felt inappropriate for the United States to assume the international legal obligation to implement a policy which state legislatures have not seen fit to put into law domestically.
The Economic, Social, and Cultural Rights Covenant requires that the ratifying parties take steps towards "achieving progressively the full realization of the rights recognized in the present Covenant.” (Article 2(1)). A statement of understanding is recommended to reiterate this point and to emphasize that the international legal obligations contained in this Covenant involve taking steps towards rather than immediate implementation of the enumerated protections. The language quoted by the Lawyers Committee from Deputy Secretary Christopher's letter of submittal with respect to foreign aid obligations, distinctions based on citizenship, and other references to the standards of Articles 6 through 9 as goals, are simply statements by Mr. Christopher and are not recommendations to the Senate of formal understandings.
The Departments of State and Justice have concurred in the recommendation of reservations, declarations and understandings to the two Covenants for the above stated reasons. However, Roberts Owen, the Legal Adviser of the Department of State said in his testimony:
“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."
Senator PELL. If the Senate does not ratify the treaties along with reservations, is there any requirement of reciprocity with other nations before the reservations become effective?
Mr. GOLDKLANG. Did you say if the Senate does not ratify? I did not quite hear the question.
Senator PELL. If the Senate does not ratify the treaties along with the reservations—well, let me reverse the phrasing to simplify the question. If the Senate does ratify the treaties along with the reservations, is there any requirement of reciprocity with other nations before the reservations become effective?
Mr. GOLDKLANG. This is the process we have adverted to. Cach party looks at the reservations. It can accept or reject them. If it accepts them, it becomes a reciprocal reservation. They can take advantage of our reservations, just as we can take advantage of theirs.
Senator PELL. This is within the 1 year timeframe, isn't it? Isn't that where this becomes important?
Mr. Rovine. I thought I understood your question to mean, Mr. Chairman, is there a reciprocal effect with respect to each of these reservations. If that is the question, the answer is yes, there is. In other words, if we formulate a reservation with respect to any particular article, then any other country is entitled to invoke that reservation as if it had made it itself, even though, in fact, it had not, in their treaty relationships with us.
In other words, if we reserve to article 10, for example, then another nation in its treaty relationship with us also is entitled to say it has no obligation with respect to us as concerns article 10, but it does with respect to all the other nations that are party to the treaty. This is because we would have a reservation to article 10, and on a reciprocal basis it is entitled to invoke it.
This is a settled rule of international practice.
I thank you all for being with us. The record of this hearing will be kept open for a period of time to accommodate additions to the record.
Incidentally, the parliamentarian has indicated that any treaty on the Senate executive calendar not acted upon before the Senate adjourns sine die, is rereferred to the committee or committees which originally reported it. The treaty can be rereported when a subsequent. Congress begins; or, a single Senator can seek unanimous consent that the committee reporting the treaty originally could be released of further reporting requirement and ask for the Senate's immediate consideration of the treaty.
This should be a part of the record. Again, with further research this may have to be amended, but this is the present understanding of this chairman with regard to the question of whether the treaty is. before the Senate or the committee.
I would add that Senator Helms requested that the record remain open for the submission of responses by Ms. Derien to written questions which he will be submitting to her. He regrets that he is unable to be here in person at this time. He asks that the answers be submitted as soon as possible. The record of these hearings will remain open for 3 weeks to give an adequate time for response to these and other written questions which may be submitted by any of my colleagues, and to permit insertion of any other material.
[Additional questions and answers follow:] Ms. PATRICIA DERIAN'S RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED
BY SENATOR HELMS Question 1. How many prisoners are being held in the Tipitapa model facility?
Answer. The Nicaraguan Government of National Reconstruction has acknowledged holding approximately 7,200 prisoners as of October 31. The majority of these prisoners are being held in the vicinity of Managua either at Tipitapa or the central police station. An officer from the Human Rights Bureau visited on November 1 and 2 and was given an escorted visit to Tipitapa prison by Minister of Interior Tomas Borge. It was evident that the prision was overcrowded, and this fact was admitted by Borge. A visit was made to the Managua Free Zone. where three newly completed factory buildings were being converted into prison facilities to accommodate 1,000 prisoners, who would be transferred from Tipitapa and police stations in interior towns. Borge announced at that time that additional facilities would be built in other locations within Nicaragua to assist in relieving: the pressure on current facilities. The Free Zone prison was nearly completed at the time of the visit and should be occupied by now.
Question 2. How many Nicaraguans are captive on islands in Lake Nicaragua, and on which islands are they held?
Answer. While consideration was given to locating prison facilities on an island in Lake Nicaragua, the decision to do so has apparently not been taken and we. have no indication that any prisoners are currently being held on islands in the Lake. Question 3. Have any banks, mines, insurance
companies and all other financial institutions been nationalized? How many? Have any former owners been compensated?
Answer. The private banking system was nationalized on July 25. Foreign owned banks were allowed to continue operations but not to accept deposits. Compensation was to be paid in five-year bonds earning six and a half percent annually.
Nicaraguan insurance companies were nationalized and the operations of foreign insurance companies were limited by decree issued on October 16. Six foreign companies, all U.S. or British, were affected. They were prohibited from selling new insurance, but are obligated to fulfill existing contracts and maintain guarantees and reserves.
The mining industry was nationalized by a decree dated November 2. The decree specifies compensation at book value with six and a half percent bonds with five years amortization. Foreign technicians have been invited to remain on the same terms and conditions as before.