This statement is included because "practice and policy in the United States prisons does not fully accord with these standards."

B. Comments:

1. The provisions of Article 10 reflect worthwhile policies. The United States is in essential compliance with the requirement of Article 10(3) which presumably means that the goals of the penitentiary system should include, inter alia, reform and social rehabilitation. U.S. prison policies are directed in part toward these goals.

2. The separation of prisoners may call for the expenditure of additional funds and small communities in particular may have difficulty in complying.

C. Proposed Substitute Language:

"The rights enumerated in Article 10(2) cannot be achieved immediately by certain communities in the United States, particularly small towns and counties with limited prison facilities and resources. For these communities the rights guaranteed by Article 10(2) will be achieved progressively, although as expeditiously as possible.

V. ARTICLE 14-ESTABLISHES STANDARDS FOR THE CONDUCT OF TRIALS INCLUDING THE RIGHTS: TO BE PRESUMED INNOCENT; TO A FAIR AND PUBLIC HEARING; TO COUNSEL, INCLUDING COURT APPOINTED COUNSEL; TO A SPEEDY TRIAL; TO PROTECTION AGAINST RETRIAL FOR THE SAME OFFENSE (DOUBLE JEOPARDY). A. Proposed Executive Branch Understanding:

The Executive Branch notes that "it is possible to read all of the requirements contained in Article 14 as consistent with United States law, policy and practice." Nonetheless, it proceeds to advise that "the Senate may wish to record its understanding of certain provisions in that article as follows:

"The United States understands that subparagraphs (3)(b) and (d) of Article 14 do not require the provision of court-appointed counsel when the defendant is financially able to retain counsel or for petty offenses for which imprisonment will not be imposed. The United States further understands that paragraph (3)(e) does not forbid requiring an indigent defendant to make a showing that the witness is necessary for his attendance to be compelled by the court. The United States considers that provisions of United States law currently in force constitute compliance with paragraph (6). The United States understands that the prohibition on double jeopardy contained in paragraph (7) is applicable only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, which is seeking a new trial for the same cause.'

B. Comments:

1. It most respects the proposed understanding is unnecessary.

2. The comment on the double jeopardy provision implies that successive prosecutions by federal and state courts may be permissible. That indeed was held by the Supreme Court in narrow decisions in Abbate v. United States, 359 U.S. 187 (1959). and Bartkus v. United States, 359 U.S. 121 (1959). However, Supreme Court decisions since 1959, such as Benton v. Maryland, 359 U.S. 784 (1969), suggest that successive state and federal prosecutions are now viewed with considerable disfavor. In any event, there is no reason why the U.S. should not now adopt this position by convention and make the change required by the international standard.

C. No reservation or understanding is necessary or desirable.

VI. ARTICLE 15(1)-THIS PROVISION BARS CONVICTION FOR EX POST FACTO CRIMINAL OFFENSES. IT ALSO PROHIBITS HEAVIER PENALTIES FROM BEING IMPOSED THAN THOSE APPLICABLE WHEN THE OFFENSE WAS COMMITTED. The THIRD CLAUSE ALLOWS AN OFFENDER TO BENEFIT FROM A CHANGE IN THE LAW WHICH REDUCES THE PENALTY FOR THE OFFENSE COMMITTED.

A. Proposed Executive Branch Reservation:

"The United States does not adhere *** to the third clause of paragraph (1) of Article 15."

This provision refers to the imposition of a reduced penalty for certain offenses. According to Mr. Christopher's letter, "this right is often granted in practice in the United States, but is not required by law."

B. Comments:

1. The fact that the practice is not now required by law is not a proper reason for refusing to require it by treaty.

2. While it may require changes in some state practice, that would be desirable reform consistent with the concepts of American criminal justice.

C. No reservation or understanding is necessary or desirable.

VII. ARTICLE 20-PROHIBITS "ANY PROPAGANDA FOR WAR" AND VOCACY OF NATIONAL, RACIAL OR RELIGIOUS HATRED THAT CONSTIT CITEMENT TO DISCRIMINATION, HOSTILITY OR VIOLENCE."

A. Proposed Executive Branch Reservation:

"The Constitution of the United States and Article 19 of this Covenan provisions for the protection of individual rights, including the righ speech, and nothing in this Covenant shall be deemed to require or to legislation by the United States, which would restrict the right of fr protected by the Constitution, laws and practice of the United States." B. Comments:

1. The proposed reservation, or an understanding to the same effect, is and probably necessary, to take account of Constitutional issues. How reference to U.S. laws, and particularly to U.S. practice, is uncertain in its and scope and is undesirable.

C. The proposed language should be retained with the deletion of t "laws and practice."

VIII. ARTICLE 47-STATES THAT "NOTHING IN THE COVENANT SHAL TERPRETED AS IMPAIRING THE INHERENT RIGHT OF ALL PEOPLES TO E UTILIZE FULLY AND FREELY THEIR NATURAL WEALTH AND RESOURCES A. Proposed Executive Branch Declaration:

"The United States declares that the right referred to in Article 47 exercised only in accordance with international law."

1. This declaration is unnecessary because it states the obvious, but th objection to stating the obvious in this case.

C. The proposed language is not objectionable.

IX. ARTICLE 50-PROVIDES THAT THE COVENANT SHALL EXTEND TO A OF FEDERAL STATES WITHOUT ANY LIMITATIONS OR EXCEPTIONS.

A. Proposed Executive Branch Reservation:

"The United States shall implement all the provisions of the Cover whose subject matter the Federal Government exercises legislative and jurisdiction; with respect to the provisions over whose subject matter co units exercise jurisdiction, the Federal Government shall take appropria ures, to the end that the competent authorities of the constituent units appropriate measures from the fulfillment of this Covenant." B. Comments:

1. The administration's language is unclear and confusing. The "subject over which the Federal government exercises jurisdiction, and over wh stituent units exercise jurisdiction is not defined and cannot meanin defined. By almost any definition both the Federal government and th exercise jurisdiction over the "subject matter "of every provision of the O See introductory comment above, p. 4.

2. Neither the proposed language, nor any variation on it, is constit necessary. Federal authority in this area is clear. Missouri v. Holland, 416 (1919).

3. Under the Constitution and International Law, the Federal govern the responsibility and the authority to carry our obligations under the C Although the Federal government has the ultimate responsibility to see t obligations are carried out, it can leave some implementation to the long as the United States sees to it that it is done.

No such provision is necessary or desirable. At most, the following declared.

"The United States will implement its obligations under this Cove legislative, executive and judicial means, federal or state, as appropriate X. GENERAL RESERVATION-PROVIDES THAT AS REGARDS ARTICLES 11 27, THE TREATY IS NON-SELF-EXECUTING.

A. Proposed Executive Branch Reservation:

"The United States declares that the provisions of Articles 1 through 2 Covenant are not self-executing."

1. This reservation is not constitutionally required. It will unnecessari U.S. compliance with some provisions and set up unnecessary political to U.S. compliance generally.

2. Many articles will in fact require Congressional implementation, b might not. Determination of what is or is not self-executing should article by article, after careful examination of the language.

C. No reservation or understanding is necessary.

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 to 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."

B. Comments:

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.

B: Comments:

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 pro

visions.

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.'

B. Comments:

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.

IV. ARTICLE 5(1).

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.

2. Right to Favorable Working Conditions-Article 7.

3. Right to Organize Unions-Article 8.

4. Right to Social Security-Article 9.

A. Proposed Executive Branch Statement;

"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." B. Comments:

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 general 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 not 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.S. 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 a 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.