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American Views on Ratification

Opinionin 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 any international agreement that might infringe on the powers of the into 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 ple 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 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.

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.

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

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PRESENT POSITION

Director, the Center for ceans 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;

Chairman of the 75 member U.S. delegation to the United Nations Seabed Committee March-April, 1973, and;

Supervised preparation and Congressional introduction of the joint StateJustice Departments bill on Sovereign Immunity. Member of the U.S. Delegation to the U.N. General Assembly 1972–75.

Sesquicentennial Associate of the University of Virginia Center for Advanced Studies 1971-72. Professor of Law and Director of the Graduate Program, the University of Virginia School of Law since 1965.

In that capacity: Specialized in national security issues particularly the IndoChina War, the Arab-Israeli Conflict, problems of intervention, the laws of war, the United Nations and the OAS, the role of law in the national security system, arms control issues, and constitutional aspects of foreign relations; testified extensively on the war powers and other constitutional issues concerning ExecutiveCongressional relations in the conduct of foreign affairs.

Consultant and Lecturer at the National War College, the Naval War College, the Army War College, the Foreign Service Institute, and the Judge Advocate General's School of the Army.

MEMBERSHIPS AND ASSOCIATIONS

Member, the Department of State Advisory Committee on the Law of the Sea The Council on Foreign Relations, the Council of the Section of International Law of the American Bar Association, Chairman of the Committee of the American Bar Association Section of International Law on Foreign Boycotts, the Board of Directors American Oceanic Organization, the Board of Editors of the Marine Technology Society Journal, the Board of Editors of the American Journal of International Law, the American Branch of the International Law Association, and the North American Council of the International Peace Academy.

Admitted to the Florida Bar (1962), the Illinois Bar (1963), the Virginia Bar (1969), the District of Columbia Bar (1974), and the Bar of the United States Supreme Court (1973).

Member of the Order of the Coif, Phi Beta Kappa, the Cosmos Club and the New York Yacht Club and recipient of the Phi Beta Kappa award for "Law and the Indo-China War" (1972 Princeton University Press), and the College Alumni Achievement Award in the Arts for 1976 from Drew University.

PERSONAL DATA

Börn June 12, 1937, New York, N.Y. Married to the former Patricia Diane Morris, 1963.

A.B. 1959, Drew University (Economics). LL. B. 1962, The Duke Law School (with distinction). LL. M. 1965, The University of Illinois. Summer 1963, Fellow The University of California International Legal Studies Program. NIH Fellow, 1965-66, the Yale Law School.

PUBLICATIONS Books: “Law and the Indo-China War” (Princeton University Press 1972). I-III “The Arab-Israeli Conflict” (Princeton University Press 1974) (One volume revised and abridged edition 1977). “Law and Civil War in the Modern World” (Johns Hopkins Press 1974). Numerous other articles on oceans policy, national security, and congressional-executive relations in foreign policy.

STATEMENT OF JOHN NORTON MOORE, UNIVERSITY OF VIRGINIA

SCHOOL OF LAW, CHARLOTTESVILLE, VA., AND VICE CHAIRMAN, SECTION OF INTERNATIONAL LAW, AMERICAN BAR ASSOCIATION

Mr. Moore. Mr. Chairman, it is a particular pleasure to see you again and to be back testifying before this committee. I might add that it is a special honor this morning to be testifying on behalf of the American Bar Association in support of ratification of the four human rights treaties which are before the committee.

The American Bar Association strongly supports ratification of these four treaties with the reservations, understandings, and declarations that have been proposed by the administration, and with one additional understanding which I will briefly discuss in a moment.

With your permission, Mr. Chairman, I would like to place my prepared remarks and the official resolutions of the House of Delegates on all four of these human rights treaties in the record of this hearing and to very briefly discuss four points.

Senator Pell. Without objection, the documents will be inserted in full in the record at the appropriate place.

Mr. MOORE. Thank you.

The points I would like briefly to discuss are these: Why the United States should ratify the four human rights treaties; why this ratification would be fully consistent with the Constitution of the United States, the Federal system and the laws of the United States; a brief comment on the right to life understanding, which is being offered as an additional understanding to those of the administration; and, finally, why we believe that no additional understanding is needed on the right to property question than is contained in the administration understanding on that issue.

Why should the United States ratify the four human rights treaties before the Senate?

Mr. Chairman, ratification of these treaties will be fully consistent with an important goal of the United States in promoting human rights in the world, and failure to ratify these treaties will be inconsistent with that important foreign policy goal.

I think it is important to achieve that goal for a number of reasons.

First, we want to promote minimum standards embodied in international law and it is very important to develop these uniform standards in international law guaranteeing minimum human rights. As a vice chairman of the section of international law of the American Bar Association, I would like to emphasize the importance of the development of international law in this area.

Second, as a leader in the movement to promote human rights in the world, it certainly would be inconsistent for the United States not to adhere to these agreements and it will continue to undermine the effectiveness of the United States in achieving human rights goals in failing to adhere to these treaties.

As you know, the United States has taken an active role in the past in the negotiations leading to these agreements and certainly even in the charter of the United Nations in seeking to promote respect for human rights.

In addition to that, the ratification of these four treaties would encourage the progressive development of a variety of institutional mechanisms which would seek to protect human rights around the world. In this connection I particularly would emphasize that if we become a treaty party to the Civil and Political Covenant, we would be entitled to participate in the Human Rights Committee, and we could file state-to-state complaints in the human rights area.

As a member of the American Convention on Human Rights, we would be able to participate in the nomination and election of judges and in the system for the new Inter-American Court on Human Rights. In the absence of that, Mr. Chairman, it has been rather interesting that an American citizen appointed to that court was nominated and appointed by a foreign nation. It certainly would seem appropriate for the United States to be a direct participant in the nomination and election of judges to the Inter-American Court on Human Rights,

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