However, if the aims of the Helsinki Final Act are to be realized, the development of an international legal framework for the achievement and protection of human rights is essential. The International Covenants on Human Rights-by codifying into international law the principles of the Universal Declarationestablish the foundation for that framework. The Covenants bolster and reinforce, in treaty form, the human rights objectives of the Final Act, which although politically significant, is not legally binding.

United States' efforts to foster compliance with the human rights provisions of the Helsinki accord are seriously hampered by our failure to ratify the Covenants. Our sincerity and credibility are impaired by the fact that while we protest violations of human rights by others, we refuse to hold ourselves to the same legallybinding standards. In fact, nearly all the eligible Helsinki signatories are parties to the Covenants. Lack of ratification has subjected the U.S. to considerable criticism from the East at such fora as the CSCE follow-up conference at Belgrade. As we approach the next CSCE review meeting--to be held in Madrid in November of 1960-Senate ratification of the International Covenants on Human Rights becomes vital if we are to pursue effectively a strong, outspoken human rights policy. American ability to promote credible respect for human rights in the CSCE context is linked to our willingness to adhere to the same code of conduct we expect and the Covenants demand-of others. I urge my colleagues in the Senate to take prompt action to ratify the foremost human rights documents in the world before the Madrid meeting. Our readiness to wipe out this blot on our own human rights record will significantly enhance our ability to put pressure on the Soviets and East Europeans to correct their deficiencies.

The following is excerpted from the Commission on Security and Cooperation in Europe's November 1979 report on U.S. compliance with the Helsinki Final Act, entitled "Fulfilling Our Promises: The United States and the Helsinki Final Act A Status Report".

INTERNATIONAL COVENANTS ON HUMAN RIGHTS

One of the major criticisms of the United States' human rights record, voiced both by other CSCE countries and private domestic organizations, is the nation's failure to ratify the International Covenants on Human Rights. The covenants, which were signed by President Carter and are now before the Senate Foreign Relations Committee, were adopted by the United Nations in 1966 and brought into force in 1976. They codify-in treaty form-universally accepted standards for the achievement and protection of human rights and legally commit ratifying states to adhere to those standards. Although American failure to ratify the Covenants is not a violation of the specific language of the Helsinki Final Act, it is clearly contrary to the spirit of the document. Furthermore, this failure excludes the U.S. from participating in other international human rights structures only open to those states which have ratified the Covenants. The sincerity and credibility of the United States in the field of human rights are seriously impaired by the fact that we have not yet ratified the Covenants.

The reference to the Covenants in the Final Act is contained in the last paragraph of Principle VII. The CSCE states, in addition to pledging themselves to "act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights" also reaffirmed their commitment to "fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound." Indirect reference to the Covenants is made in Principle X which commits participating states to fulfill in good faith their existing obligations under international law. Clearly then, the Final Act does not oblige any country to become a party to any international agreement, but rather to fulfill those international obligations it has already undertaken.

Background

Promotion of human rights and fundamental freedoms for all was included in the Charter of the United Nations' statement of basic purposes. In the early days of the United Nations, the Economic and Social Council and its Commissions on Human Rights decided that an international document on human rights should be drafted and that it should consist of a declaration of general principles, having moral force; a separate covenant legally binding on those states ratifying it; and measures of implementation.

Within a relatively short time, the Commission drafted the Universal Declaration of Human Rights, an historic document that set the standards for the achievement and protection of human rights in the post-war world. The Declaration is an

internationally endorsed statement of principles and an authoritative guide to the interpretation of the U.N. Charter. Although the Declaration does not have the force of law, it has had some legal impact in that it has inspired human rights clauses in national constitutions and international conventions on specific rights since its adoption by the General Assembly in December of 1948.

Having proclaimed the Universal Declaration of Human Rights, the U.N. turned to transforming those principles into treaty provisions which establish legal obligations on the part of each ratifying state. Eventually, it was decided that two covenants were needed: one dealing with civil and political rights; the other with economic, social and cultural rights. The prevailing view was that separate covenants should be adopted because civil and political rights could be secured immediately whereas adequate economic, social and cultural rights could only be achieved progressively, according to each nation's available resources.

It took 18 years before a majority of the U.N. members agreed on the working of the documents. In December of 1966, the General Assembly adopted the International Covenants on Human Rights. Another decade passsed before they were ratified by the required 35 states necessary to bring them into force. The International Covenant on Economic, Social and Cultural Rights entered into force in January of 1976 and the International Covenant on Civil and Political Rights became effective in March of the same year. To date, 62 nations have ratified the economic, social and cultural treaty, while there are 60 parties to the Covenant on Civil and Political Rights.

While the Universal Declaration is essentially a global bill of rights which proclaims and affirms certain "equal and inalienable rights of all members of the human family," the Covenants legally commit each nation to guarantee those rights to their citizens while establishing a minimum standard of governmental conduct.

The Covenant on Economic, Social and Cultural Rights assures the right of citizens to employment, safe working conditions, social security, education, health care, participation in trade unions, cultural life, scientific research and creative activity, and commits governments to guarantee the progressive realization of these rights.

Under the Civil and Political Covenant, state parties are obligated to ensure that the individuals within their jurisdiction enjoy a number of rights; including the right to life, liberty, security of person, equality before the courts, presumption of innocence when charged with a crime, freedom of thought, conscience, religion, assembly, expression, association, movement and residence, and the right to participate in voting and public affairs. The treaty also prohibits torture, slavery and cruel, inhuman or degrading treatment or punishment.....

The Covenant on Civil and Political Rights further provides for the establishment of a Human Rights Committee which may receive and consider communications from one state party alleging that another state party is violating the provisions of the Covenant. Furthermore, under the Optional Protocol to the Covenant, which 23 countries have ratified, the Committee may also receive and consider communications from individuals claiming to be victims of violations. The Committee is also empowered to review and comment on reports required from each ratifying nation which detail that nation's implementation record. Although far from a fool-proof enforcement mechanism, the Committee provides an increasingly important international forum to focus attention on the problems of human rights violations.

U.S. Attitude Toward Covenants

The United States voted for both of the Covenants at the United Nations in 1966 but, at the time, expressed concern that they "do not go far enough in protecting the rights of all individuals." Up until a few years ago, the official American position was that the Covenants do more harm than good since they provide a dangerous legal basis for the restriction of human rights. This position was based on the fact that the rights enumerated in the Covenants are not absolute; there are clauses which permit a ratifying state to limit the rights and freedoms of individuals within their jurisdiction. However, restrictions may not be imposed arbitrarily, but only insofar as they are necessary to protect "public safety, order, health, or morals or the fundamental rights and freedoms of others." Additionally, limitations on these rights must be prescribed by domestic law. The Covenants also specifically prohibit interpreting any language in the treaties as justification for the denial or further limitation of individual rights. Many Western countries, apparently regarding international recognition of human rights in a legally binding document as outweighing the potential risks of abuse presented by these clauses, have become parties to the Covenants. These include the CSCE signatory states of Canada, Denmark, West Germany and Great Britain.

American Views on Ratification

Opinion in the U.S. has been divided on the merit and utility of the International Covenants on Human Rights. In the 1950's, some claimed that multilateral human rights treaties would infringe upon the powers and rights of the states in the federal system. Others opposed the treaties, alleging that under the Constitution the Federal Government lacks the power to enter into treaties' of a human rights nature. Others allege that specific provisions of the Covenants conflict with substantive articles of the Constitution. Isolationists and opponents of the United Nations viewed the Covenants and other international treaties as attempts to interfere in the domestic legislative process. Conservatives believed that U.S. adoption of the economic, social and cultural treaty would make "Marxism and socialism the supreme law of the land."

In 1954, a Constitutional amendment proposed by former Ohio Senator John W. Bricker which would have prevented the U.S. Government from entering into any international agreement that might infringe on the powers of the states or be self-executing (i.e. enforceable by the courts without implementing legislation) was defeated in the Senate by one vote. In order to ensure the amendment's defeat, Secretary of State John Foster Dulles was forced to pledge that the United States did "not intend to become a party to any such covenant or present it as a treaty for consideration by the Senate." 25 The Dulles Doctrine, as it became known, remained in effect throughout the next two decades.

In the past few years, especially since the signing of the Helsinki Final Act, the climate for ratification of international human rights treaties has greatly improved. The passage of time has done much to allay many of the more extreme fears about ratification. The enactment of civil rights legislation and the effect such legislation had on the debate over state versus federal authority has helped to defuse many of the Constitutional issues. The increased interest in international human rights promoted by Congress and the Carter Administration has also contributed to the general change in attitude.

In September of 1976, then-presidential candidate Jimmy Carter stated that the United States should "move toward Senate ratification of several important treaties drafted in the United Nations for the protection of human rights" including the International Covenants on Human Rights. Six months later, in a major address to the United Nations General Assembly, President Carter pledged to sign the Covenants and to "seek Congressional approval" of them.

In August of 1977, the CSCE Commission issued a comprehensive report on the status of implementation of the Helsinki Final Act two years after its signing. In that report, the Commission noted that President Carter's pledge was "overdue." "Until it is fulfilled," the report said, "the United States is at a disadvantage in pursuing respect for the Covenants' provisions from those Helsinki signatories which on the basis of the Commission's findings-are honoring neither the Covenants they ratified nor Principle VII . . ." The Commissioner commended that "those Final Act signatories which have not yet signed and ratified the International Covenants on Human Rights-especially the United States--take prompt action to do so."

On October 5, 1977, a day after the CSCE review conference opened in Belgrade, President Carter signed the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In February of 1978, President Carter submitted the two human rights Covenants, along with the International Convention on the Elimination of All Forms of Racial Discrimination and the American Convention on Human Rights, to the Senate for advice and consent to their ratification. The President observed that "while the United States is a leader in the realization and protection of human rights, it is one of the few large nations that has not become a party to the three United Nations human rights treaties. Our failure to become a party increasingly reflects upon our attainments, and prejudices United States participation in the development of the international law of human rights." The Covenants are presently before the Senate Foreign Relations Committee, which has scheduled public hearings for mid-November.

Although the great majority of the substantive provisions of the Covenants are entirely consistent with the letter and spirit of the U.S. Constitution and laws, the President recommended reservations, understandings or declarations wherever a provision is or appears to be in conflict with United States law. Amnesty International USA, the American Association of the International Commission of Jurists and the International League for Human Rights-in a joint statement

25 Hearings before a Subcommittee of the Committee of the Judiciary, U.S. Senate, 83d Cong., 1st sess., on 8.J. Res. 1 and S.J. Res. 43, 1953, p. 825.

endorsing ratification-took the position that, ". as a matter of policy, reservations should not be used to limit freedoms and rights but only to expand them." However, if the proposed reservations are necessary in order to insure the two-third majority necessary for passage by the Senate, most advocates probably would rather have the Covenants ratified with reservations than not at all.

CONCLUSION

The Commission believes that ratification of the International Covenants on Human Rights and the Optional Protocol should be given the highest priority by both the Administration and the Congress. The Commission also believes that a minimum number of reservations, consistent with the U.S. Constitution, should be attached.

The Commission strongly urges the Administration to encourage the Senate to ratify the Covenants. The Commission recommends that the Senate Foreign Relations Committee report favorably on the Covenants so they may be brought before the full Senate during the 96th Congress. The Commission further recommends that the Senate ratify the Covenants and that the President sign the Optional Protocol and submit it to the Senate for advice and consent to ratification. The Commission reiterates its 1977 recommendation that:

"The act of ratification * * * would be a positive step toward compliance with Principle VII and creating mechanisms to ensure international respect for human rights within and beyond the Helsinki states.'

Senator PELL. Let me announce that there will be an executive session of the Foreign Relations Committee in room S-116 in the Capitol at 3:30 this afternoon.

We will reconvene here in open session to continue this series of hearings at 9:30 tomorrow morning.

The meeting is adjourned.

[Whereupon, at 11:20 a.m., the committee adjourned, to reconvene at 9:30 a.m., Thursday, November 15, 1979.]

INTERNATIONAL HUMAN RIGHTS TREATIES

THURSDAY, NOVEMBER 15, 1979

UNITED STATES SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 9:34 a.m., in room 4221, Dirksen Senate Office Building, Hon. Claiborne Pell presiding. Present: Senators Pell, Javits, and Helms.

Senator PELL. The Committee on Foreign Relations will please come to order.

OPENING STATEMENT

Our first panel today will consist, first, of Mr. John Norton Moore, representing the American Bar Association. Mr. Moore is with the University of Virginia School of Law in Charlottesville. Also, Ms. Althea T. L. Simmons will appear on the panel. She is director of the Washington Bureau of the National Association for the Advancement of Colored People. Mr. Thomas Kahn, assistant to the president of the AFL/CIO will complete the panel.

I would ask these witnesses to please come forward to the witness table.

John Norton Moore is an old friend of the committee and of this Senator. Usually we talk about the oceans and deep seabed, but today we will discuss the human rights conventions.

[Mr. Moore's biographical sketch follows:]

BIOGRAPHICAL SKETCH OF JOHN NORTON MOORE

PRESENT POSITION

Director, the Center for Oceans Law and Policy and Walter L. Brown, Professor of Law, The University of Virginia.

IMMEDIATE PAST POSITION

Chairman, the NSC Interagency Task Force on the Law of the Sea, and U.S. Representative to the Law of the Sea Conference with rank of Ambassador 1973–76. (Includes extensive experience negotiating with the Soviet Union, U.S. oceans allies and developing countries, coordination with Congress and the private sector, and shaping and implementation of unified executive branch positions).

PAST EXPERIENCE

Fellow, the Woodrow Wilson International Center for Scholars, May-August 1976.

Served as the Counselor on International Law to the Department of State 1972-73. In that capacity:

Drafted the U.S. sponsored treaty to prevent the spread of terrorism; Worked extensively on constitutional issues concerning Executive-Congressional relations in the conduct of foreign affairs including the War Powers Act and the Case Amendment;