Senator PELL. Mr. Schachter, please excuse me for a moment. I have an urgent message to attend to and must briefly recess this hearing. I will return in a moment. A brief recess was taken.] Senator PELL. The hearing will please come back to order. I was saying a word or two about the significance of the Human Rights Committee as a committee concerned with implementation. Even though states parties submit reports written by themselves and, therefore, to a large degree self-serving, this committee does put to the representatives of the states a series of searching questions on many aspects of their judicial and administrative systems relating to human rights. I noted during some of the sessions of that committee the very sharp and pointed questions put, for example, to countries of Eastern Europe, to Western Germany, to the United Kingdom, and a number of other states. For the first time these countries are being subjected to the kind of inquiry which never really has taken place on an international level. However, the main way this Covenant on Human Rights will be carried out is through domestic legislation. It is important to realize that the covenant has become part of national law in most countries which are parties. In other countries the obligation to give full effect to the covenant in the national legal system through domestic remedies is made very clear by article 2 of the covenant. That article requires the states to adopt legislative or other measures as may be necessary. It requires the states to provide effective remedies to individuals, and in general terms it mandates that full effect be given to each of the recognized rights. That article leads me to say a few words about the U.S. executive branch's proposal on reservations. I think the basic position taken by the executive branch with regard to reservations is seriously deficient and mistaken. They have put forward what to me is an extraordinary position, namely that the United States should ratify the covenant on the condition that no change would be made in U.S. law. It seems to me this is contrary to the basic object of the covenant, which is clearly to have the parties adapt their domestic law as necessary to meet the obligations of the covenant. In the case of the United States, that adaptation will not be a substantial one, since most of American law with few exceptions, is in conformity with the provisions of the covenant. But what does disturb me is a policy expressly designed to avoid any change in American law. The implications of this extend beyond the particular legal provisions that would be affected. Would we want the other states to use their existing law as a standard of compliance? It seems to me that we are opening up new lines that would enable states to adhere to treaties without undertaking to change their law or practice even when incompatible with the treaty obligations. I have no quarrel with the idea that there may be specific reservations that are desirable and necessary. What I do object to is the broad policy, as expressed by the President, that the United States would make no change of whatever kind in its national law and that, therefore, they would seek to make reservations on every specific issue, no matter how minor. Thank you, Mr. Chairman. Senator PELL. Thank you very much. I appreciate your thoughts very much indeed. Are you going to be submitting a written statement, too? Mr. SCHACHTER. Yes, Mr. Chairman. I would be happy to do that. Senator PELL. Good. That would be greatly appreciated. [Professor Schachter's prepared statement follows:] PREPARED STATEMENT OF PROFESSOR OSCAR SCHACHTER This written statement will supplement my oral testimony with particular reference to the reservations and declarations proposed by the executive branch in respect of the Covenant on Civil and Political Rights. In transmitting the four treaties, the President said: "Whenever a provision is in conflict with U.S. law, a reservation, understanding or declaration has been recommended." Two important questions are raised by the position taken by the executive branch. One, is the proposed policy in conformity with the obligations of the treaties? Two, is it desirable to adopt a policy under which the United States announces that it will make no change whatsoever in its existing law even though such changes would be required by a treaty? Would we wish other states to adopt a similar policy to reduce their obligations based on their existing law and practices? The critical legal issue raised is not whether specific reservations are admissible. It is rather whether a whole series of reservations admittedly designed to avoid any need to modify U.S. law can be regarded as in conformity with the object and purpose of the Covenant on Civil and Political Rights, especially with the obligation in article 2. There can be no doubt that the object of article 2 was to require all parties to adopt measures wherever necessary to give effect to the Covenant. The proposed U.S. group of reservations is intended to deprive that requirement of any effect whatsoever for the United States. It would do so by reducing the obligations of the United States under the Covenant specifically so that it would be under no requirement to adopt any measures beyond existing domestic law. By attempting to avoid the need for legislation, it turns upside down the obligation of the Covenant as well as the general principle of treaty law that a party may not invoke its internal law as justification for failure to perform a treaty. Under the principles of international law recognized by the International Court of Justice in its Advisory Opinion on Reservations and the codification of those principles in article 19 on the Vienna Convention of the Law of Treaties, a doubt arises whether the ensemble of reservations proposed by the President would be permissible. The doubt, as indicated, occurs because of the manifest intention and the extent of the reservations taken together. It is one thing to make specific reservations on their own merits and quite another to adopt a policy of making reservations to avoid any change at all in existing domestic law. No precise precedent for this kind of situation has been found, and one may hesitate to be absolutely categorical as to the law. But irrespective of the legal issue, a serious question of good faith is bound to arise when a state purports to accept the obligations of a treaty and at the same time seeks to rule out any change in its law that would be required to comply with the treaty. It has been suggested that the United States has to adopt the proposed policy on reservations since otherwise it would be in a violation of the treaties when it deposits its instrument of ratification. This point is not well-founded. When states become parties to treaties that require changes in domestic law, a reasonable period is allowed for the enactment of the required legislation. The legislative history of the Covenant on Civil and Political Rights amply supports that conclusion. Doubts are also raised by the proposed declaration that would deny any selfexecuting effect to the Covenant in the courts of the United States. What this means is that the provisions of the Covenant which are clearly capable of immediate judicial application (such as those on fair trial, notice of charges, inhumane treatment) could not be applied until legislation were enacted. But this is not legally necessary in view of article VI of the Constitution and well established constitutional doctrine. There is no reason to assume that American courts would not be capable of acting on provisions of the Covenant that are clear and judiciallyenforceable. The effect of the "non-self-executing" declaration would be to deny (or defer) the benefits of the Covenant to persons who would otherwise be entitled to rely on it in American courts. This would not be very serious if Congress would act quickly to enact legislation giving effect to all such provisions. However, if this were not the case (and a realistic view suggests it would not be likely) then the effect of a long delay would be to deprive individuals of remedies they would otherwise have under the treaty and the constitution. Such delay would be even more protracted if it were decided by the President and the Senate that the requisite legislative action would have to be adopted by the state legislatures in respect of those provisions of the Covenants that concern matters over which the states exercise jurisdiction. A reservation to this effert has been proposed by the President. That reservation, if adopted, may be challenged by other parties on the ground of its incompatibility with article 50 of the Covenant which requires the Covenant to "extend to all parts of federal States without any limitations or exceptions." A further ground for challenging the reservation would be its probable effect in unduly delaying the provision of effective remedies under Article 2(3). Both of these possible challenges would lack legal justification if the necessary legislative actions by the Congress and the state legislatures were to be enacted within a reasonable time. Since it probably could not be definitively determined at the time of ratification that this would not be the case, it may be difficult for other parties to object to the reservation on the ground that legislative delays or non-action are possible or even likely. Perhaps if evidence of an official nature clearly supported a prediction of such protracted delays for some provisions or in some areas of the country, objections to the reservation would have an adequate foundation. But even if the reservation should be accepted, it would not provide a legal justification for a failure of the United States to meet the requirements of Article 2 within a reasonable period and in all parts of the country. As a matter of interpretation, one would not construe a reservation of the kind proposed as setting aside the basic commitments of the Covenant expressed in Article 2. If such a construction were adopted it would have to be held that the reservation was ipso jure impermissible because of its incompatibility with the object and purpose of the Covenant. I should add that I am not opposed to all reservations. A specific reservation to a particular article may be justified. One example is a reservation to Article 20 that would make it clear that the right of free speech under the First Amendment would not be limited by that article. I can think of no other article that requires a reservation but I would be open to persuasion if a good case can be made for a particular reservation. My main concern is to avoid a general policy on reservations that would allow others to attack United States adherence as half-hearted and hypocritical. We should not give the impression that we are mainly interested in enforcing human rights elsewhere while avoiding any change in our own law or practice. The issue transcends technical legal considerations. It is important for the United States to affirm its whole-hearted support of a Covenant that so clearly embodies American libertarian and democratic ideals. That support will not be perceived if ratification is made subject to the numerous reservations and declarations proposed by the Executive Branch. Mr. SCHACHTER. Mr. Chairman, I would like to say something, too, about the one reservation which I think is appropriate. This is a reservation relating to the provision in article 20 which requires laws to prohibit propaganda against war and advocacy of racial, religious, or national hatred. That article, it seems to me, very appropriately can be subject to a reservation, a reservation which would state that the article must be construed in accordance with U.S. constitutional requirements. Actually, the proposed reservation put forward by the executive branch, goes beyond that, and refers to the Constitution, laws, and practice of the United States. I think it would be quite adequate to limit this to the Constitution. Senator PELL. Excuse me, sir, but how long will your verbal statement be? Mr. SCHACHTER. Just a few more minutes. Senator PELL. As you know, most people are limiting themselves to about 7 minutes. Mr. SCHACHTER. May I say a brief word on the non-self-executing point to which reference was made earlier? In the first place I would note it is not put forward as a reservation. It is put forward as a declaration. This is quite legitimate because the treaty in itself does not require that a state party make its provisions part of the law of the land. The executive branch is quite right legally in putting that forward as a declaration since, in itself, it does not make any exception, it would not modify the treaty. Other countries under their constitutional systems may treat the convenant provisions as non-self-executing as long as they adopt legislation to give it effect. But I see no reason why the United States, which has a clear constitutional provision making treaties the law of the land, should deprive the citizens of the United States of the advantage of that constitutional provision. The fact is that a great many of the provisions of this covenant are capable of direct application in the courts. Is there any necessity to require legislation so as to enable the courts to act on the right to a fair trial or the prohibition of torture? By imposing that kind of condition in declaring that the covenant would not be self-executing, the effect would be to delay the application of this covenant and to deprive the individuals of the effective remedies which they otherwise would get under the treaty and the Constitution. Finally, while I will not take time to elaborate on this, let me say that I also regard the proposed reservation regarding Federal states as unclear and unnecessary, it would contribute to delay and probably to confusion as to the application of the covenant and applicable law. I shall refer to this point in my written statement. Thank you, Mr. Chairman. Senator PELL. Thank you, Mr. Schachter. Mr. Sohn, you are an old friend of the committee. We have been colleagues over the years in our work on Law of the Sea. We would be happy to hear from you next. [Professor Sohn's biographical sketch follows:] BIOGRAPHICAL SKETCH OF PROFESSOR LOUIS BRUNO SOHN. Louis B. Sohn is Bemis Professor of International Law and John Harvey Gregory Lecturer on World Organization at the Harvard Law School. Born on March 1, 1914, in Lwów, Poland, Professor Sohn attended John Casimir University in that city and received the Dipl. Sc. M. and the LL.M. (1935). He then came to Harvard where he received the LL.M (1940) and the S.J.D. (1958). He was awarded the Law School's Addison Brown Prize in 1941. Professor Sohn was a Research Fellow at the Institute of Private International Law at John Casimir University (1935-39). At Harvard, he became a Research Associate of Judge Manley 0. Hudson, Bemis Professor of International Law (1940-46), and a Research Fellow in International Law (1946-47). He joined the Harvard faculty as a Lecturer in 1947 and became John Harvey Gregory Lecturer on World Organization and Assistant Professor of Law (both in 1951). He was made a full Professor of Law in 1953 and Bemis Professor of International Law in 1961. During this period, Professor Sohn took part in the United Nations Conference at San Francisco in 1945; he served as consultant to the United Nations Secretariat (1948, 1969), and as Legal Officer of the Codification Division in the United Nations Secretariat (1950-51). Professor Sohn has written "Cases on World Law" (1950), "Laws and Regulations on the Regime of the High Seas" (2 vols., 1951-52), volumes 8 and 9 of "International Legislation" (with Hudson), "Cases on United Nations Law” (1956; 2nd ed. 1967), "World Peace Through World Law" (1958; 2nd ed. 1960; 3rd ed. 1966) written with Grenville Clark, "Basic Documents of African Regionalĺ Organizations" (4 vols., 1971-72), and "International Protection of Human Rights" (with T. Buergenthal, 1973), "Recent Codification of the Law of State Responsibility" (with R.R. Baxter and F. Garcia Amador, 1974). He has written many articles on, and participated in various international conferences on, international organizations, disarmament and arms control, human rights, international tribunals, environment, the international regime of the seabed and the law of the sea. Professor Sohn was a consultant to the Office of International Security Affairs in the Department of Defense from 1963 to 1969, and to the United States Arms Control and Disarmament Agency from 1961 to 1969. During 1970 and 1971 he served as Counselor on International Law in the Legal Adviser's Office of the Department of State. Since 1971, he has been serving as a Member of the United States Delegation to the U.N. Seabed Committee and the Third United Nations Law of the Sea Conference. Professor Sohn is the Chairman of the Commission to Study the Organization of Peace, a member of the American Society of International Law (Vice President, 1965-66), a Vice President of the American Branch of the International Law Association, a member of the Editorial Board of the American Journal of International Law, a member of the American Academy of Arts and Sciences, and of the Federation of American Scientists (Vice Chairman, 1963–64). In 1965, he served as the Chairman of the Committee on Human Rights of the President's National Citizen's Commission for International Cooperation. He is an honorary member of the American Bar Association, and an honorary Admiral in the Texas Navy. In 1974, he received the "Hero of Peace" award from the World Federalists of Canada. STATEMENT OF LOUIS B. SOHN, BEMIS PROFESSOR OF INTERNATIONAL LAW, HARVARD UNIVERSITY LAW SCHOOL, CAMBRIDGE, MASS. Mr. SOHN. Thank you, Mr. Chairman. mino. My name is Louis B. Sohn. I am a professor at Harvard University, though I speak here completely in my private capacity. As our time is limited, I would like to speak only about three points. The first one is the historical origin of the covenant. The second one relates to the special character of the covenant. The third one is similar to what Mr. Schachter emphasized about reservations and understandings. As far as the first point is concerned, I believe it often is forgotten that the origin of the Covenant on Economic, Social and Cultural Rights can be traced to the Four Freedoms message to Congress of President Roosevelt in 1941. Senator PELL. I think it might be good to refresh the record with those Four Freedoms. I notice that very often we forget what they are. They are freedom from want, freedom from fear, freedom of religion and-what is the fourth? Mr. SоHN. Freedom of association. Senator PELL. Are you sure? I don't believe that is it. Since we fought a war over those Four Freedoms, I think we should not forget them. Mr. SOHN. I am sorry, it is freedom of speech. Senator PELL. Yes; I believe you are right. Mr. SOHN. They are freedom of speech and expression, freedom to worship God in one's own way everywhere in the world, freedom from want and freedom from fear. Senator PELL. Yes. Thank you. |