Mr. SMITHEY. Mr. Chairman, now that this has been identified by the witness, I ask that pages 3 through 19 of the report from which I read, which is applicable to the subject under discussion, be included as a part of the record.

The CHAIRMAN. All right, it may be included.

Mr. TWEED. I wonder if it would be appropriate to suggest that the whole thing go in.

Mr. SMITHEY. The remaining pages that I did not offer for inclusion in the record were copies of the resolution and the covenants, most of which have already been inserted in the record, sir.

The CHAIRMAN. Thank you very much, Mr. Tweed.
That may be included in the record.

(The excerpt from the report referred to follows:)

REPORT ON PROPOSED CONSTITUTIONAL AMENDMENTS RELATING TO THE MAKINg of TREATIES AND THEIR EFFECT

Article II, relating to the powers of the President, provides that:

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur."

And Article VI provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The American Bar Association has recently proposed amendments relating to treaties and their effect, and on February 7th Senator Bricker, of Ohio, joined by other Senators, introduced in the Senate S. J. Res. 130, proposing amendments on the same subject.

The agitation on this subject has its source in the decision of the Supreme Court in Missouri v. Holland, 252 U. S. 416. By the Act of March 4, 1913 (37 Stat. 847) Congress had attempted to exercise a protective control over migratory wild fowl. That Act was held unconstitutional in two District Court cases decided in 1914, on the ground that the regulation of shooting wild fowl was exclusively a function of the states. United States v. Shauver, 214 Fed. 154; United States v. McCullagh, 221 Fed. 288. Thereafter, in 1916, the United States and Great Britain made a treaty providing for the protection, by closed seasons and in other ways, of migratory birds in the United States and Canada and binding each power to take the necessary legislative measures for carrying it out. The Act of July 3, 1918 (40 Stat. 755) prohibiting killing of the migratory birds, except as permitted by regulations made by the Secretary of Agriculture, was the measure enacted by Congress to implement the treaty.

The question of the validity of that statute reached the Supreme Court in Missouri v. Holland, 252 U. S. 416. The Act was sustained (Justices VanDevanter and Pitney dissenting). The Court held that the protection of migratory wild fowl, transitorially in Canada and in the U. S. A., is an appropriate subject of international agreement and that the treaty is valid, and that the statute implementing the treaty is valid because of the provision in Article I, Section 8, of the Constitution that

"The Congress shall have power *** to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

That case thus established the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it might not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the states.

That principle has been accepted without serious opposition for over thirty years, but has now given rise to controversy in the United States because of proposed treaties that are under negotiation in the United Nations, particularly the so-called Covenant on Human Rights. That is in form a multi-partite treaty by which the United Nations agree to establish each for its own people a multitude of freedoms and so-called human rights. It is not yet in final form and has not yet been signed on behalf of the United States or any other nation.

Another document which to less degree involves the same problems is the Treaty on Genocide, which has been signed on behalf of the United States and is now pending in the Senate awaiting approval or disapproval by that body.

Some of the "human rights" to be guaranteed to its people by each nation, a party to the Covenant on Human Rights, are matters which under our Constitution would not normally be within the legislative power of the Congress but are within the legislative power of the several states. If the Covenant on Human Rights deals "with an appropriate subject of international agreement" and is thus within the treaty power, the rule announced in Missouri v. Holland would operate to give the Congress power to implement the treaty by legislation which it could not enact in the absence of a treaty and thus enter a field heretofore reserved to the states. It is that feature of the situation which has aroused bitter opposition to the Covenant on Human Rights, and has resulted in proposals to amend the constitutional provisions relating to treaties.

The American Bar Association has two committees working on this subject. One is a Standing Committee on Peace and Law Through United Nations. The other is a Special Committee of the Section on International Law, called the Committee on Constitutional Aspects of International Agreements. The Standing Committee has recommended the adoption of a constitutional amendment, reading as follows:

"A provision of a treaty which conflicts with any provision of the Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty."

The Special Committee on Constitutional Aspects of International Agreements does not approve a move at this time for a constitutional amendment. It is not convinced that under the constitution as it is today any treaty conflicting with any provision of the constitution is of any force, or that the first sentence in the above amendment is necessary. It prefers an effort to convert the Covenant on Human Rights into a recommendation instead of a compact to enact legislation. There is a serious question also as to whether an agreement among the nations as to how they shall treat their own people is "an appropriate subject of international agreement" and thus within the treaty power provided for by our constitution.

Copies of the Bricker resolution and of the Genocide Treaty and of one of the preliminary drafts of the Covenant on Human Rights are in the appendix of this report.

1. THE GENOCIDE CONVENTION

We think the doctrine of Missouri v. Holland is not really involved in the case of the Genocide Convention, for the reason that under the Constitution the Congress already, without any treaty, has power to enact legislation condemning genocide and the ratification of the Genocide Convention would not operate to enlarge the power of Congress. Section 8 of Article I of the Constitution already gives Congress power "To define and punish *** Offenses against the Law of Nations." The Nuremberg trials and their results, in which the United States took a leading part, have gone a long way in establishing genocide as an offense against the law of nations. The Genocide Treaty would convincingly mark genocide as condemned by the law of nations. Under these conditions, to ratify the Genocide Treaty would not operate to enlarge the power of Congress at the expense of the states.

It would be unfortunate, and detrimental to our relations with other nations, if the United States should now refuse to ratify that treaty and there is no good reason why it should refuse. The ratification, however, should contain a statement of our understanding that the treaty is not self-executing and requires legislation to implement it.

Article V of the Treaty reads as follows:

"The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III." The treaty is therefore fairly susceptible of the interpretation that it is not self-executig and the expression that it is ratified with that understanding would not be a "reservation" in the sense of an alteration of its terms, but no doubt should be left as to whether it is self-executing, because of a need for clarification of the definition of genocide, which could then be embodied in the implementing legislation.

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There seems to be no disagreement about the proposition that the expressed intent of the parties will be controlling as to whether a treaty is self-executing or requires legislation to implement it.

The ratification by the Senate should also contain a statement of our understanding as to what is "genocide." The definition of genocide contained in the treaty is not entirely satisfactory. Originally the definition clearly comprehended only "mass" destruction or attempts at it. The insertion of the words "in part" in the definition now opens the door to claims that the destruction of a small part of a group is in itself within the definition.

Article II of the Treaty is:

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such :

"(a) Killing members of the group;

"(b) Causing serious bodily or mental harm to members of the group;

"(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

"(d) Imposing measures intended to prevent births within the group; "(e) Forcibly transferring children of the group to another group."

That definition of genocide is also fairly susceptible of the interpretation that it includes only attempts at "mass" destruction as the term is generally understood. The expression of the International Court of Justice in the recent case involving the effect of reservations shows that the Court has this conception of the definition in the treaty. There is other authority to the same effect supporting the view that the words "in part" in the treaty were not intended to include in the definition isolated destruction or damage to a part of the group, unless pursuant to a plan or movement to inflict mass destruction. See statement by Raphael Lemkin (said to be the "father" of the Genocide Treaty), New York Herald Tribune, Sunday, December 16, 1951.

Article VI of the Genocide Convention about the trial of accused persons by "such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction" should not be the cause of any worry to the United States. Our Constitution requires that persons charged with crime committed in the United States be tried in the district in which the offense is committed, and it is inconceivable that the United States would send any person abroad for trial who has committed an offense within the United States, and if it attempted to do so such action would be unlawful and prevented by our courts. Neither is the clause in Article VII of the treaty pledging the parties to grant extradition a source of anxiety. Our extradition treaties, without exception, deal only with extradition of persons committing crimes abroad and who, as fugitives from justice, have sought asylum here.

We think, therefore, that the Association should favor the ratification of the Genocide Treaty, with the understanding suggested above. At least it should insist that the Senate refrain from assenting to the Genocide Treaty unless the resolution of ratification embody these two statements of our "understandings."

2. THE COVENANT ON HUMAN RIGHTS

This proposal presents entirely different problems than does the Genocide Convention.

If it is within the treaty power and would be valid as a treaty, then under the rule of Missouri v. Holland the power of Congress to enact legislation on the subject of civil rights would be substantially enlarged and such limits on that power as now exist would disappear. Such a result would cause serious dissension within the United States between the advocates of states rights and those who desire increase in the centralized power of the federal government. We would gain nothing by the Human Rights Convention which justifies us in precipitating such dissension in the United States. Measures in support of civil rights are already more fully developed in the United States than in any other nation, unless it be in the British Commonwealth of Nations.

On the other hand, many of the other nations involved have not reached a stage of political or social development where it is practical for them at one stroke to put into effect all the utopian measures specified in the Covenant on Human Rights. In many cases, to do so would require fundamental changes in their forms of government. In any view, becoming a party to the Covenant would make us a target for charges and complaints by nations which are looking for a chance to make trouble for United States.

These difficulties cannot be overcome by inserting in the Covenant any clause applicable to Federal States such as has been proposed by our State Department. That clause (Article 43 on Federal States) is as follows:

"(a) With respect to any articles of this Covenant which are determined in accordance with the constitutional processes of that State to be appropriate in whole or in part for federal action, the obligations of the federal government shall to this extent be the same as those of parties which are not Federal States; "(b) With respect to articles which are determined in accordance with the constitutional processes of that State to be appropriate in whole or in part for action by the constituent states, provinces or cantons, the federal government shall bring such articles, with favorable recommendation, to the notice of the appropriate authorities of the states, provinces, or cantons at the earliest possible moment."

If such a treaty as the Covenant on Human Rights is within the treaty making power, then under our Constitution and the decisions of our Supreme Court the effect of our becoming a party to the Covenant would be to give the Congress of the United States full power to enact legislation effective within the states to put the Covenant into effect. That obviously would be accomplished "in accordance with the constitutional processes" of the United States. It would be a result consistent with our Constitution, as already determined in Missouri v. Holland. Consequently Congress would in accordance with our constitutional processes, have full power, and subdivision (b) dealing with favorable recommendations to the states would be inoperative. If we want to put a clause in the Covenant on this subject, it would have to go further and provide that the Federal Government assumes no obligation to enact legislation which it could not constitutionally enact, in the absence of the treaty. This would relieve the Federal Government from an obligation to enact federal legislation, but even then it might be held that under the rule in Missouri v. Holland Congress would gain power to fully implement the Covenant although under no international obligation to do so.

It would also be unwise to attempt to hide behind our federal system as an excuse for limitation on our obligations, which would not avail a non-federal state, with all legislative power resting in its national government. Why sign a treaty we do not approve, and then hamstring our power to enforce its terms?

3. THE PROPOSALS FOR A CONSTITUTIONAL AMENDMENT

There is no reason at this time for trying to obtain any constitutional amendment directed at prohibiting our government from making such a treaty as the Covenant on Human Rights, or directed at altering the effect of treaties.

The present constitutional provision is Clause 2 of Article VI, as follows: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In Article II, Section 2, relating to the powers of the President, it is said: "He shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two-thirds of the Senators present concur."

Several suggestions for constitutional amendments have been made. One is to amend Clause 2 of Article VI, by adding the following: "provided that no provision of a treaty which violates any express or implied provision of the Constitution, or which is inconsistent with the nature of the Government of the United States, or the relation between the states and the United States, shall be of any force or effect; and provided further that no treaty, although it deals with a proper subject of negotiation between the United States and another Nation or Nations, which abridges the rights and powers of the states or which undertakes to impose civil or criminal liability for acts of a citizen of the United States or provides that legislation shall be enacted imposing such a civil or criminal liability, or which affects rights of, or imposes duties on, citizens of the United States or provides that legislation shall be enacted affecting such a right or imposing such a duty, shall become law in the United States unless, and then only to the extent that, Congress shall implement it by legislation which It could have enacted under its constitutional grant of legislative powers in the absence of such treaty."

Another suggestion is as follows:

"Amend Paragraph 2 of Article VI to read as follows:

""This Constitution, and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.'

"The deleted portion reads as follows: '; and all treaties made, or which shall be made under the authority of the United States,'.

"Amend the first clause of Paragraph 2, Section 2, Article II, to read as follows: "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

"A treaty shall not become internal law in the United States unless, and then only to the extent that, Congress shall implement it by legislation which it could have enacted under its Constitutional grant of legislative powers in the absence of such treaty.'"

A later proposal (made by the American Bar Association Committee on Peace and Law) is to amend the Constitution by adding the following:

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated power in the absence of such treaty."

The first sentence in this last proposal is based on the assumption that under the Constitution as it now stands a treaty may be valid, although it violates the Constitution. There is no substantial basis for that assumption. The second sentence of the proposal would abolish the rule established in Missouri v. Holland. The result would be that even if a treaty deals within an appropriate subject of international agreement the Congress would have no power to implement it or make it effective in the United States, unless the subject matter were one on which Congress could legislate in absence of a treaty. Such a treaty as that with Canada relating to migratory birds would have no effect in states which did not pass legislation in accord with the treaty. Treaties giving aliens the right to do business or own or inherit land, with reciprocal rights for our citizens abroad, could be put into effect in any state only by state legislation. The effectiveness here of treaties on many other subjects plainly appropriate subjects of international agreements would depend entirely on approval by state legislation. The President and Senate would be left with power to make treaties on proper subjects of international agreement, but the Congress would be shorn of power to enact legislation to discharge our international obligations. Nothing in our past experience justifies such drastic measures.

A primary difficulty in obtaining the adoption of these proposais is that they would operate to limit the power of the Senate in the field of treatymaking. They are based on the assumption that the present Senate and future Senators cannot be trusted to reject treaties like the Covenant on Human Rights. Except where a constitutional convention is held, submission of amendments must be approved by both House and Senate. A move to induce the Senate to submit any of these proposals on the ground that the Senate cannot be trusted and its hands must be tied seems unrealistic. If the Senate believe that such "new type" treaties as that on Human Rights are unwise, it would be much easier to persuade the Senate to refuse to approve them than it would to persuade the Senate to bar such treaties by tying its own hands. Furthermore, the present provision which allows a treaty to become domestic law has served a useful purpose in the past.

The theory that under paragraph 2 of Article VI a treaty may be supreme over the Constitution or that a treaty which violates any provision of the Constitution can be of any effect is without any basis in reason or in any adjudicated case. Treaties and statutes are on the same level and the Constitution

is supreme over both. It will be noted that in paragraph 2 of Article VI it is stated that this Constitution and the laws of the United Staes which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under authority of the United States, shall be the Supreme Law of the land. The fact that in mentioning treaties it is not said treaties made in pursuance of the Constitution has been seized upon to support the argument that laws must be consistent with the Constitution, but treaties may be effective even though they violate the Constitution. It seems absurd to contend that a law enacted by the House, plus the Senate, plus the President, must conform to Constitution, but that a treaty made only by the Senate and the President is valid even if it conflicts with the Constitution. This slight variation in paragraph 2 of Article VI leads to no such result and is hopelessly inadequate as a reason for attempting a constitutional amendment.