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President Truman insisted that the Universal Declaration contain article 17 guaranteeing the individual's right to property, before the United States would support the declaration. It has been the consistent position of the United States since_that time-or Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon and Ford—that before the United States would become a party to any implementing treaty of the declaration, the treaty must recognize each person's right to property as a basic human right protected under international law.
On October 5, 1977, President Carter reversed this American position of nearly three decades by signing, on behalf of the United States, the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights.
On February 23 of last year, the President transmitted these covenants to the Senate for ratification. Because of the history of these covenants regarding article 17 of the declaration and personal property rights, their ratification by the Senate would for the first time legitimize the unlawful expropriation without compensation or arbitrary seizure of Americans' property overseas. Furthermore, ratification by the Senate would again for the first time have the United States formally acquiesce to Socialist and Marxist governments' denial of basic individual economic rights. As presently written, these U.N. covenants require the United States to ignore basic constitutional rights of Americans as a matter of international law.
THE RIGHT TO PROPERTY AND THE FRAMERS OF THE CONSTITUTION
The authors of the Constitution realized that the existence of personal liberty depends upon a delicate balance of many individual freedoms. The freedoms articulated in the Bill of Rights come together in a unique way to establish a context in which personal liberty is possible. To erode or ignore one part of that liberty, they understood, was to seriously weaken the whole. They were not willing to maintain one right at the expense of another, and they strove to preserve a balance of freedoms as the foundation of liberty in an ordered society.
The Americans, Jefferson asserted in the Declaration of Independence, strove to preserve their inherited rights and freedoms as part of their English legal tradition.
The Founding Fathers of the new United States determined to preserve this heritage of liberty. Certainly the right to property was viewed as part of the tradition of freedom obtained from England. “The Commentaries on English Law" by William Blackstone, which sold nearly as many copies in the 13 colonies as in England itself, maintained that "so great is the regard of the law for private property, that it will not authorize the least violation of it."
John Locke's "Second Treatise of Government,” the influence of which can be seen throughout the Declaration of Independence and Constitution, observed that the preservation of property is the reason why societies are formed and governments are created. Locke maintained that “the supreme power cannot take from any man any part of his property without his own consent.”
The authors of the Constitution sought to protect the right to property from government intrusion. Section 9 of article I prohibits the seizure of property through the use of arbitrary tax laws and section 10 prohibits laws impairing the obligation of contracts. James Madison argued in the Federalist Papers that the denial of property rights through laws impairing the obligation of contracts is "contrary to the first principles of the social compact, and to every principle of sound legislation.”
John Adams maintained that the right to property was not only a personal right, but a cornerstone of just government. Without the right to property Adams believed the exercise of freedom was not possible in an ordered society. He wrote:
“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist."
The Bill of Rights accords the right to property the same high standing as other rights of the person. The fourth amendment establishes the same protection against unlawful search and seizure of property as it does of the person. The right to trial by jury extends not only to criminal cases against the individual, but also to civil cases concerning property. The fifth amendment provides that no person shall "be deprived of life, liberty or property, without due process of law."
James Madison wrote:
"Government is instituted to protect property of every sort, and this being the end of government, that alone is not a just government. where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures.'
The right to property was understood by the framers of the Constitution to encompass more than just real estate. It extends to the product of an individual's labor and industry.
The newly instituted Supreme Court moved quickly to defend the inviolability of contracts and the right of individuals to private property under the Constitution. Along with Blackstone, Locke, and Madison, Justice Joseph Story understood that “one of the great objects of political society is the protection of property.'
In a series of decisions beginning with the case of Fletcher against Peck, Chief Justice John Marshall and Justice Story used the contract clause to affirm a strong constitutional right to property.
Later, Story was to explain the motivation of the Court in this endeavor:
“The sacred rights of property are to be guarded at every point. I call them sacred, because, if they were unprotected, all other rights become worthless or visionary. What is liberty, if it does not draw after it the right to enjoy the fruits of our own industry? What is political liberty, if it imparts only perpetual poverty to us and all our prosperity? What is the privilege of a vote, if the majority of the hour may sweep away the earnings of our whole lives”?
THE RIGHT TO PROPERTY AMENDMENT
How is it that we are suddenly asked to abandon a right so central to the Constitution and Bill of Rights? Would we not hesitate to abandon its companion rights central to the existence of a free society? Rights such as freedom of speech, of the press, and of religion? Would we agree to ratify a treaty which specifically and purposefully rejected a right of free speech or of religion or of a fair trial on the grounds that our failure to become a party increasingly reflects upon our human rights policy?
To ratify treaties which purport to advance human rights while in fact denying the basic human right of each individual to possess the product of his labor would be to ignore our own constitutional heritage. The United States must continue to lead the development of human rights under international law. Yet, we cannot do so if we fail to defend and promote those human rights so long a part of our own Constitution. To ratify these treaties in their present form would be such a denial of our Constitution and Bill of Rights.
When the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights are presented for the advice and consent of the Senate to their ratification I intend to submit in the form of an amendment to the covenants, article 17 of the U.N. Universal Declaration of Human Rights which states as follows:
"Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.
I believe that only in this way can we contribute to the international legal protection of human rights consistent with our own Constitution.
HELMS AMENDMENT TO U.N. TREATIES TO PROTECT AMERICAN RIGHTS Washington-Senator Jesse Helms announced today that when two U.N. treaties concerning human rights are presented to the Senate for ratification, he will seek to amend them to protect Americans from the arbitrary or unlawful seizure of their private property overseas by foreign governments.
The treaties under consideration, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, were the subject of hearings beginning today before the Senate Committee on Foreign Relations. Senator Helms is a member of the Committee.
The treaties are the result of three decades of work to implement and make legally binding the principles of the Universal Declaration of Human Rights adopted by the United Nations in 1948. However, at the insistence of the Soviet Union, the treaties specifically exclude Article 17 of the Declaration which guarantees the right to private property as a human right.
"Every American President since Harry Truman has refused to sign these treaties unless they protect the individual's right to property,” Helms said. “The recent action by President Carter is a reversal of this consistent U.S. policy."
“Ratification of these treaties under such circumstances amounts to a denial by the United States under international law of our constitutional rights to enforceable contracts, freedom from unlawful search and seizure of property, to have property taken only for due process of law and to receive just compensation for any property taken by government,” Helms said.
“Should the Senate ratify these treaties without adding the right to property provision of the Universal Declaration, it would for the first time legitimize under international law the expropriation and nationalization of Americans' property overseas by foreign governments without payment,” Helms said.
“Article 17 of the Universal Declaration of Human Rights states: Everyone has the right to own property alone as well as in association with others. No person shall be arbitrarily deprived of his property."
Senator Pell. Thank you, Senator Helms. Do you have any questions of Ambassador Yost?
Senator HELMs. No, Mr. Chairman.
Senator PELL. Ambassador Yost, thank you very much, indeed, for being with us. We are delighted to have you here,
Ambassador Yost. I was very pleased to be here, Mr. Chairman.
Senator Pell. I believe Ambassador Goldberg, who was originally scheduled to be heard at 9:30 is now with us. I must say that we are very fortunate to have him here, with his wide experience in the United Nations, in politics, in Government, and particularly his excellent work in connection with the Helsinki commission a year ago, when I had the honor of serving under him on our delegation. I also greet him as an old friend. We are delighted to have you here, Justice Goldberg. Justice GOLDBERG. Thank
Mr. Chairman, Senator PELL. Senator Javits?
Senator Javits. I just want to join the chairman in welcoming Justice Goldberg here today. He is also an old friend of mine. I think he is one of our most distinguished Americans. We are indeed lucky to have him testify this morning.
STATEMENT OF HON. ARTHUR GOLDBERG, FORMER JUSTICE, U.S.
SUPREME COURT, AND FORMER AMBASSADOR TO THE UNITED NATIONS, WASHINGTON, D.C.
Justice GOLDBERG. Thank you very much.
Mr. Chairman, Senator Javits, Senator Helms, it is a great pleasure again to be before this committee. It is like coming home. I appear before this committee in support of ratification by the Senate of the four treaties which have been transmitted to it by the President. I shall not read my statement, but, with your permission, I ask that it be incorporated in the record.
Senator PELL. It will be inserted in the record in full.
Mr. Chairman, you and I together were at the United Nations, and we were also at the Belgrade Conference. I think I can speak for both of us, if I may
Senator PELL. Only more eloquently than I believe I could speak
Justice GOLDBERG (continuing). Say that the failure of the United States to ratify these four covenants and the Covenant on Genocide, of which Senator Javits has been such a great exponent throughout
the many years, has been a great problem for the United States, and a great embarrassment. It is a problem for the United States because, as you recall, we at Belgrade insisted upon implementation by the Soviet Union and the countries of the East of the human rights provisions of the Helsinki Accords. Our capability, our ability, and our credibility to do so was greatly impaired at Belgrade and will be greatly impaired at Madrid in 1980 by the failure of our country to ratify the human rights treaties which are now before you.
It is almost incredible to believe, for example and you will forgive me if I bring it up, because this committee has tried to get the Genocide Convention approved—that 30 years have passed since the Genocide Convention was transmitted to the Senate. It is incredible to believe that in this day and age, where there is an increasing conception of what the Holocaust is all about, the Genocide Convention should not have been ratified. This is also true of the four treaties transmitted by the President to this committee, although less time has elapsed in their case.
These four treaties, in essence, embody what our Government long has done. It is rather ironic that while many other countries in the world fall so far short of the human rights standards which our Constitution, Bill of Rights, and laws passed by Congress provide, both in the civil rights area and in the social and economic area, our country should drag its feet in ratifying these treaties.
This is so anomalous that it is difficult to explain. We, who have a great record-not perfect, to be sure, but a great record-should have been among the first to ratify these treaties.
Mr. Chairman, I am aware that there is language in these treaties which causes constitutional concern.
In this connection, two of these treaties, not the North American one, were enacted by the General Assembly while I was Ambassador at the United Nations. When I signed the first of them, the International Covenant on the Elimination of All Forms of Racial Discrimination, I, for our country, made this statement:
The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America.
I made similar statements in reference to the other covenants when they were before the relevant committees of the United Nations.
It seems to me that this type of situation is unlike the SALT Treaty you have been considering recently, where amendments or even reservations may go to the heart of the treaty and may necessitate renegotiation. These human rights treaties are the type of treaties where the Senate, in its wisdom, and this committee, in recommending them to the Senate, can, by an appropriate understanding or reservation, state that the treaties must be interpreted to conform to our Constitution and both domestic and international law. Such an understanding or reservation would conform with the legislative history of the covenants when they were before the United Nations. In this way there will be clear notice to all signatories that the Senate, also, is honoring what every member of the United Nations knew our position was during United Nations negotiation of these treaties.
Indeed, to use a lawyer's term, the statements we made in reference to these treaties, where language appears which, on first reading, may appear to present some problem, are part of the treaties, the covenants, themselves. Every signatory state understands this. Every member of the United Nations knows very well that the United States is bound by a constitution and laws and that treaties ratified by our country must conform with our Constitution.
In summary, Mr. Chairman, I recommend the ratification of these treaties. I reaffirm the support which I have given through many years and which this committee has given for many years to ratification of the Genocide Convention. In so doing, I speak not only for myself in my personal capacity and as a former U.S. Ambassador and as a former chairman of our delegation at Belgrade, but I speak in behalf of the Ad Hoc Committee for Ratification of the Genocide and Human Rights Conventions, which consists of 52 organizations, comprising many millions of Americans drawn broadly from all segments of our society, such as labor unions, churches, synagogues, and ethnic groups. Indeed, the 52 organizations mirror the type of country we are proud to be.
Thank you, Mr. Chairman. .
PREPARED STATEMENT OF HON. ARTHUR J. GOLDBERG
Three of these treaties were negotiated at the United Nations: The International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; and The International Covenant on Civil and Political Rights. The fourth treaty was adopted by the Organization of American States in 1969 and is open for adoption only by members of that Organization.
I also appear to reaffirm my support of the Genocide Convention which this committee has recommended on several occasions to the Senate for ratification.
My appearance is on behalf of the Ad Hoc Committee on Human Rights and Genocide Treaties, a committee of 52 national organizations whose total membership is in the millions.
The failure of the Senate to ratify the International Convention on the Elimination of All forms of Racial Discrimination which I signed on behalf of the United States on September 28, 1966 was both a problem and an embarrassment to the United States and to me during my tenure at the United Nations.
The failure of Presidents of the United States to sign the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations General Assembly on December 16, 1966 and the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on September 16, 1966 was likewise a problem and embarrassment both to our country and to me as United States Ambassador. The failure of the United States to sign the fourth human rights treaty adopted by the Organization of American States in 1969 until June 1, 1977 was similarly a problem to our country and to those charged with the conduct of our country's foreign policy.
It was not until the convening of the Belgrade Conference on Security and Cooperation in Europe that President Carter on October 5, 1977 signed the Economic Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
And I need scarcely remind this committee that the Genocide Convention was transmitted to the Senate on June 6, 1949, more than thirty years ago, and still has not been ratified and that the other conventions that I have referred to await ratification by the Senate.
This does our country little credit. We are one of the very few nations which have not ratified these treaties.