We come to the irony noted by my colleagues on this panel. Having directly experienced the embarrassment of trying to explain nonratification, while simultaneously presenting the United States as the paladin of human rights, the executive branch now couples the convention with an army of proposed understandings, formal reservations, and declarations which, if uncritically embraced by the Senate, can only intensify the appearance of national hypocrisy.

Let us imagine that the Soviet Union were to announce its ratification of a comparable human rights convention, along with a set of understanding and reservations which the Soviet Government blithely assured the world removed any possibility of conflict between the provisions of the convention and Soviet law and practice, which is the position of the administration. This announcement doubtless would initiate in the West a field day of ridicule.

The administration can say that in the case of the United States, unlike the Soviet Union, the disparity between domestic law and practice and the terms of the convention is modest. Of course this is true. But, as an argument, it cuts against the administration's position. Where the disparity is large, then unqualified adherence to the conventions would require wrenching changes in domestic law; which is a good deal to ask of any government although we certainly should ask it. But, where the changes required are few and modest, where no radical internal reform is a precondition to compliance, the blanket refusal to contemplate any change implies arrogant disregard for the opinions of the rest of mankind about the content of human rights. Let me make it clear, Mr. Chairman, that my own argument does not lead to the conclusion that all reservations and understandings are unjustified. On some issues, political values of profound importance require us to go our own way. For instance, I believe that the United States should refuse to accept the convention's categorical preclusion of abortion. I would be happy to elaborate on this if you would like me to.

The question is: Why must we rigidly evade the views of other hemispheric governments where we can invoke as a justification nothing more impressive than neglect? For example, article 5, which enumerates the right to humane treatment, provides that "accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons." The State Department, having recognized that this standard is not yet met in U.S. practice, then endorses mealy-mouthed evasion in the form of an understanding that the United States considers the standard simply as a goal "to be achieved progressively." This was not the intent of the drafters and the provision obviously is capable of immediate implementation.

I do not intend to impugn the administration's motives. On the contrary, I admire the President's commitment to human rights and the efforts of the Secretary of State.

My disagreement with them really is over tactics, not principles. I am confident that if they had not felt constrained by a long tradition of senatorial obstructionism, they would not have proposed this almost illusory form of ratification. To avoid endless debate over every provision that may require some change in U.S. law or practice, they have ground the convention into a perfect facsimile of our status quo. This tactic may win ratification, but my fear is of a consequently empty victory.

So, Mr. Chairman, to conclude, I come here to urge a different approach on the honorable members of this committee. I ask you to consider on its merits each provision of the convention that is inconsistent with our current law and practice. In some cases, as I already have exemplified, you will find ample grounds for preferring our existing arrangements. But in others, you will, I hope, consider deferring to a judgment broadly shared by our hemispheric neighbors that some refinement of U.S. practice will contribute to the defense of human rights. True allegiance to the cause of human rights requires a small measure of humility.

Thank you, Mr. Chairman.

[Professor Farer's prepared statement follows:]

PREPARED STATEMENT OF PROFESSOR THOMAS J. FARER

The American Convention culminates three decades of legal and institutional development. It confirms symbolically the establishment of a network of rules and enforcement procedures which impressively rivals the human rights system of free Europe. That this network should have emerged in a region where humane values are under constant and brutal assault in a large number of its constituent states is a tribute to the power of liberal ideals.

I do not mean to suggest that conscience and altruism alone have fueled the human rights effort. Human rights are not and cannot be apolitical. By their nature they express values-essentially the aspiration to an open, plural and just society. In that alleged commonality of aspiration the United States has found the moral and ideological basis of the Inter-American system of defense and cooperation. In the name of those values, though in part for other obvious reasons, its hemispheric neighbors excluded Cuba from participation in the system. And the United States invoked them again when it intervened in the Dominican Republic's civil war of 1965.

The onset of the cold war coincided with the American Declaration of the Rights and Duties of Man which the Convention before you largely codifies. The rise of Fidel Castro coincides with the establishment of the Inter-American Commission on Human Rights. The Dominican Intervention of 1965 was quickly followed by OAS action to enhance the Commission's jurisdiction. Is it, finally, mere coincidence that a United States Administration should lead a Hemisphere-wide campaign on behalf of the American Convention after a divisive war which had eroded moral confidence and the moral bonds of alliance?

Ideas and values are ineluctably part of the great global competition. Ideals are weapons of incalculable force. Human rights are the essence of our ideals and in promoting their institutionalization, we have not entirely lost sight of their relation to what people like to call practical politics. The so-called distinction between human rights and national interest is an illusion of fools. Human rights are part of our national interest; but they are as well the bridge between our particular interests and those of most of our planetary co-tenants.

With all its faulty limits, the Carter Administration's campaign to promote human rights has regained some of the vast terrain yielded by cynical predecessors from both political parties in the struggle for ideological allegiance. All along the way that campaign has been hampered by the weight of earlier national acts and omissions widely seen as compromising or even implicitly denying our stated ideals. Among those omissions is the failure to ratify the major human rights agreements, agreements which no hand did more than our own to shape.

As far as the American Convention alone is concerned, the United States could, until recently, at least conceal itself slightly in a crowd of other non-ratifiers. And not all the company was palpably suspect. But times have changed in part, no doubt, because our own Government has sought to change them. When the President submitted the Convention to the Senate in December 1977, as the letter of transmittal indicates, it had still been ratified only by five Hemispheric states. But since then the number has grown to fifteen, four more states than those required to bring the Convention into force. The crowd has thinned out. We are left beside Uruguay, Chile, Paraguay, and a few other countries. And in this case we lack even the usual rationlization, namely the value of restraining federal power from entering domains in which the states have traditionally enjoyed preeminence. For Article 28 of the Convention, the "Federal Clause", enjoins only that "the national government shall immediately take suitable measures, in

accordance with its constitution and its laws, to the end that the competent authorities of the constituent units [i.e. the states] may adopt appropriate provisions for the fulfillment of this Convention." (Emphasis added.)

So why has it required two years for the Foreign Relations Committee to initiate the process which could lead to ratification? What honorable or even rational basis is left for procrastination? Do Senators actually doubt whether in its everyday life the United States is in substantial compliance with most humanitarian norms? Do they actually fear international scrutiny of our national conduct? One hopes not. But if the reluctance to act, reflected in the Senate's deliberate pace, rests on some hidden sense of guilt or some primitive nationalist reluctance to concede the propriety of international concern, it rests on illusory grounds. The simple reality is that ratification of this Convention will not add substantially to the international obligations already assumed by the United States.

The 1967 Amendments to the Charter of the Organization of American States, the so-called Protocol of Buenos Aires, implicitly but incontestably incorporates into the Charter both the substantive norms enforced by the Inter-American Commission on Human Rights and the procedures for their enforcement. The Convention elaborates or modifies a few substantive rights defined in the 1948 Declaration on the Rights and Duties of Man, which the Commission has been defending since 1959, and it adds a Court to the enforcement system. But the Commission remains the principal mechanism for supervising compliance. Before the convention came into force, in July 1978, the Commission already had the power to inquiry into the general situation of human rights in every member state of the OAS and to issue a report. It already had the power to conduct onsite observations, after having obtained the permission of the target state's government.

In so far as the Commission is concerned, the Convention changes nothing. With respect to those states ratifying it, the Convention simply provides a new formal basis for the Commission's jurisdiction. The Commission's authority viz-a-viz non-ratifying states derives from the Charter of the OAS to which the United States and Chile and Paraguay and other non-ratifying states are parties. So now the Commission draws its power from two legal sources; but the power itself is unchanged.

In short, then, the Senate has before it a Convention drafted with major U.S. participation, shaped with an eye to U.S. constitutional sensitivities, brought into force coincident with the U.S.-led campaign for widespread ratification, a convention that supposedly codified the moral basis of the anti-Soviet alliance, and a Convention which does not in significant measure enlarge the international obligations of the United States. It would be hard to imagine a more compelling case for the Senate to record expeditiously its advice and consent.

But we come now to an irony no less sharp than the laggard position of a nation that declares itself the champion of human rights. Having directly experienced the embarrassments of having to explain non-ratification while trying simulataneously to present the United States as the paladin of human rights, the Executive Branch had considerable incentive to urge the Senate to close the gap between our rhetoric and our perceived behavior. What it has done in fact is couple the Convention with an army of proposed "understandings” and formal reservations which, if uncritically embraced by the Senate, can only intensify the appearance of national hypocrisy.

It is hard to see one's own country objectively. So let us imagine that the Soviet Union were to announce its ratification of a comparable human rights convention along with a set of understandings and reservations which the Soviet Government blithely assured the world removed any possibility of conflict between the provisions of the Convention and Soviet law and practice. This announcement would doubtless initiate in the West a field day of ridicule for the bathetic transparency of Soviet behavior.

But, the Administration can say, in the case of the United States, the disparity between domestic law and the terms of the Convention is very modest. And of course that is true. But as an argument it cuts sharply against the Administration's position. Where the disparity is large, unqualified adherence to human rights Conventions will require wrenching changes in domestic law. That is a great deal to ask of any government, although we should certainly ask it. But where the changes required are few and modest, where no radical internal reform is a precondition to compliance, the blanket refusal to contemplate any changes implies arrogant disregard for the opinions of the rest of mankind about the content of human rights.

My own argument does not lead to the conclusion that all reservations and understandings are unjustified. On some issues, political values of profound importance require us to go our own way. I believe, for instance, that the United States should refuse to accept Article four's categorical preclusion of abortion. For it would require the government to impose on all the peoples of our country a moral position which many reject on moral grounds. Moral tolerance is the genius of liberal democracy—a system of majority rule balanced by respect for individual rights. Such a system cannot endure, indeed it violates its very nature, when it backs with state sanctions moral positions which do not enjoy almost universal support.

We should meet the issue head on with a reservation which states the principled basis for its adoption and notes that the Convention's rigid approach is rejected not only in the United States, but in many other countries as well. In this case, the Convention does not reflect the overwhelming consensus of peoples and governments around the globe.

But why must we rigidly evade the views of other Hemispheric governments where we can invoke as a justification nothing more impressive than neglect? Article five, which sets out the "Right to Humane Treatment", provides that "Accused Persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.' "The State Department, having recognized that that standard is "not yet met in United States practice", then endorses mealy-mouthed evasion in the form of an understanding that the United States considers the standard simply as a goal "to be achieved progressively rather than through immediate implementation."

That was not the intent of the drafters. The provision is capable of immediate implementation. It is a practical corollary of the presumption of innocence which we cherish. The cost is not prohibitive. Principle and equity call for immediate steps to meet the standard. If we are not willing to take those steps, and if we are unwilling to modify any of our other ways of doing things, then ratification of the Convention seems little more than an exercise in hypocrisy. Veiled hypocrisy may have an occasionally respectable role to play in the world of practical diplomacy. But transparent deception, which is what we have here, is as futile as it is self-contradictory.

I do not intend to impugn the Administration's motives. On the contrary, I admire the President's commitment to human rights and the reenforcing efforts of the Secretary and Deputy Secretary of State, Mr. Vance and Mr. Christopher. My disagreement with them is really over tactics, not principles. I am confident that if they had not felt constrained by a long tradition of Senatorial obstructionism, they would not have proposed this almost illusory form of ratification. To avoid endless debate over every provision that may require some change in U.S. law or practice, they have ground the Convention into a perfect facsimile of our status quo.

Perhaps this tactic will win ratification where another would have failed. My fear is of a consequently empty victory: A victory which actually reenforces the reluctance of some governments to concede the existence of external restraints on their domestic behavior; a victory which encourages cynicism about United States policy and the norms of human rights; a victory which will encourage our own moral complacence.

So I come here to urge a different approach on the Honorable members of this Committee. I ask you to consider on its merits each provision of the Convention that is inconsistent with our current law and practice. In some cases, as I have already exemplified, you will find ample grounds for preferring our existing arrangements. But in others, you will, I hope, consider deferring to a judgment, broadly shared by our Hemispheric neighbors, that some refinement of United States practice will contribute to the defense of human rights. True allegiance to the cause of human rights requires a measure of humility. If a society such as we are, committed by its traditions and way of life to the defense of human rights, cannot in the smallest measure defer to the general opinion of mankind where that opinion recognizes a higher standard than we have yet achieved, what can we expect of states where human rights is an aspiration not of governments but of the peoples over whom they reign?

Senator PELL. Thank you very much for your statement, Professor Farer.

LOCATION OF INTER-AMERICAN COURT

I would like for the moment to return to the question that Mr. Moore suggested I take up with you, Dr. Sohn, the question of where the Inter-American Court meets. Does it meet in Costa Rica on a fairly permanent basis or does it rotate?

Mr. SOHN. The headquarters are in Costa Rica. It is supposed to meet there normally. But if necessary for some reason, it is permitted to meet elsewhere, but, in principle, it meets in Costa Rica. It is going to have a session there in January.

Senator PELL. Has it had any sessions in the past?

Mr. SOHN. It has had the first, inaugural, session in September. It will have the first substantive session in January. It would be preparing its rules of procedures at that time. There is not yet a case before it. Senator PELL. Is its docket in the same state as that of the International Court of Justice?

Mr. SOHN. Its docket at this point is zero.

Senator PELL. So is that of the ICJ.

Mr. SOHN. No; not quite. The ICJ has one case before it, between Libya and Tunisia.

Senator PELL. I see. Thank you.

Does it look as if it will have a heavy docket? What do you think? Mr. SOHN. It is not yet clear. But it has a very broad provision about advisory opinion. Not only the organs of the OSA but also any state can ask for an opinion of the Court. It is hoped that some states would use this possibility in order to get interpretation, for instance, about the consistency of their laws with the convention. For instance, if the United States ratifies and there is some doubt about some of the problems which Professor Farer mentioned, we could ask for an advisory opinion and have the matters clarified. Mr. FARER. Mr. Chairman, may I add to that.

The problem is that states ratify the American Convention without necessarily accepting the jurisdiction of the Court. So far, I believe only one country has accepted the jurisdiction of the Court. Senator PELL. Which country is that?

Mr. FARER. Costa Rica.

This is why the immediate prospects for a large agenda are modest. But there is the possibility, as Professor Sohn points out, of advisory opinions. The likelihood of contentious proceedings at the present time is slender.

Senator PELL. Wouldn't the so-called Bricker reservation have application here, too, or would it not?

Mr. FARER. Do you mean the nonself-executing part?

Senator PELL. Yes.

Mr. FARER. Well, no. It is not necessary here because, even if it were self-executing, the United States still would retain the option of accepting or rejecting the jurisdiction of the Court.

RIGHT TO LIFE RESERVATION

Senator PELL. I was struck by your comment on the right to life. Your thought is that the American reservation should be knocked out? Mr. FARER. On the contrary. I endorse that reservation. Here I think we should not defer to the opinion of the other hemispheric states. In many cases, though by no means all, they are states