STATEMENT OF CARL B. RIX, MILWAUKEE, WIS., VICE CHAIRMAN OF THE COMMITTEE ON PEACE AND LAW UNDER THE UNITED NATIONS

Mr. RIX. I asked permission to appear on behalf of the Committee on Peace and Law to clarify several points that came up in discussion by one or two witnesses. One was as to the provision in the proposed Treaty on Human Rights to the effect that there was a provision in regard to guarantees of the right of the States

We have been interested in that provision. Our attention was directed to it more specifically the other day because we received a letter from Mr. Chafee who testified here in which he asserted that the construction of the word "guarantee" that he used, and others, in connection with the Treaty on Human Rights was that the word "guarantee" meant safeguarding, and that there were certain rights that were safeguarded in the Constitution of the United States, certain provisions safeguarding instead of guaranteeing. That does not meet with our view,at all.

I think all of us who received his letters replied rather emphatically that we thought the word "guarantee" meant just what it said. The situation arises because of the provision of article 18 (2) of the draft of the Covenant on Human Rights:

Nothing in this covenant may be interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed under the laws of the contracting state or any conventions to which it is a part.

He, as I told you, treats that not as a guaranty but as a safeguarding. It is true that there are certain provisions in the Constitution which, as you know, are guaranteed. The first seven or eight parts of the Bill of Rights constitute guarantees. There are provisions in the Constitution, the first part of the Constitution, guaranteeing certain rights which cannot be taken away. But when we come to some of the most essential rights which we regard as most essential, in our opinion, there is no guaranty in connection with them except, as you gentlemen know, that in connection with the freedom of religion, the freedom of the press and speech, the freedom of association and the right of assembly, the provision that Congress shall pass no laws affecting the right to freedom of religion or abridge these other rights. In other words, the limitation is on Congress only, and there is no limitation whatsoever upon the abridgement of those rights by the now new method of making an additional system of laws for the United States by the means of treaties.

The constitutional provision is that a treaty shall be ratified by the Senate and approved by the President. The Senate, acting with the President, has always been defined as a partnership, never as Congress. Congress is specifically defined in the Constitution as consisting of the House of Representatives and the Senate. So that by no stretch of the imagination can it be construed, and I do not believe any writer or courts have ever used that term in connection with the treaty-making powers of the Senate_and_President, as equivalent to action by Congress. Therefore, under this system which you have been discussing here, which is the subject of this amendment, the question arises as to whether or not the guaranty, the so-called guaranty of the freedom of speech and of the press is such a guaranty as would be covered by the Constitution.

It is a popular use of the term, there is no question about it. We speak of the guaranties of freedom of speech and freedom of the press. In fact, Mr. Justice Clark in the decision the other day spoke rather freely about the guaranties of the freedom of speech and of the press in the Constitution. But when you get down and analyze it and subject it to the acid test of whether or not treaty law can be used to cut down our freedoms of religion and speech and press, freedom of assembly and association, you will find very quickly that this overwhelming treaty law may abridge our freedom of the press and freedom of speech, and it may affect the freedom of religion.

I know that there are people right now in this country who feel that a treaty with the Vatican might affect the freedom of religion, and there is some basis for it, because if the Vatican is recognized undoubtedly it would have the status of a State and always be recognized to have the status of a State, and a treaty might have that effect. Not that it would ever get through the Senate, but I just mention it as one of the possibilities in the use of this term.

Now, when we come to the provisions of the proposed Treaty Covenant on Human Rights, we have been reluctant, Senator, to take up a specific analysis of the Covenant on Human Rights because it is in such a state of flux. Therefore, in all of our work, we have kept from analyzing is because our analysis would not fit, and I will show you in a few minutes why we are justified in that belief, through an action which came, I think, last Sunday on the Commission on Human Rights. That explains why we have not gone into these questions. But we have discussed them on the question of freedom of speech and freedom of the press, particularly, because the same provisions were put into the treaty on public information and were the subject of discussion there and were one of the reasons why the United States and Great Britain and other nations withdrew their support entirely from the treaty on public information, because of the proposed restrictions on the freedom of speech, freedom of the press, and freedom of religion. So that the subject may be covered in the record, I think I had better read the proposed articles 13 and 14 of the Covenant on Human Rights:

(1) Everyone shall have the right to freedom of thought, conscience, and religion; this right shall include freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private to manifest his religion or belief in teaching, practice, worship, and observance. (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are pursuant to law and are reasonable and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 14 reads:

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The right to seek, receive, and impart information and ideas carries with it special duties and responsibilities and may therefore be subject to certain penalties, liabilities, and restrictions, but these shall be such only as are provided by law and are necessary for the protection of national security, public order, safety, or morals, or of the rights, freedoms, or reputations of others.

Practically the same language is used in article 15 as to the right of public assembly and article 16 as to the right of association.

As I said before, the same definitions were used with very little change of language in the treaty on public information, and those provisions were rather vigorously defended by Professor Chafee and others, and finally the United States withdrew its support of the treaty on public information after the press realized the restrictions which could arise by treaty law under these provisions.

In the News Gathering Convention the same thing was provided in a different form, because the question of freedom of speech was not specifically provided in the News Gathering Convention. But there the press again, and even the men like Mr. Sevellon Brown of the Providence Journal and Mr. Carol Binder of the Minneapolis Tribune, who were active in working out that treaty, withdrew their support of it when they realized what might happen under treaty law to their profession to freedom of speech and freedom of the press in this country.

So that in the case of those two treaties, I do not think there is any particular question but that it will not come up, but this may come up under the Covenant on Human Rights. And it was for that reason that I wanted to point out to you the difference between the guaranty, and the guaranty under our Constitution, because in the opinion of most of the people connected with the press that was absolutely destroyed, and all of the protections that were thrown around freedom of the press in this country. There is hardly a newspaper that I know of that now supports it. The matter was shunted back and forth from the Commission on Human Rights to the Economic Council, and it will go before the Assembly and this new draft will come before the Assembly probably in September or December next. So, in our opinion, these provisions drawn in this fashion and with these restrictions, render the treaty useless insofar as the preservation of the rights of freedom of speech and freedom of the press, and possibly freedom of religion, are concerned.

The other subject that I wanted to discuss was one that was raised the other day, I think, by one of the speakers, when he spoke about the federal states article, which was supposed to protect the rights of states. Now, in connection with that article as it was drawn, it is now article 71, and it purported to be a sort of a redraft of the ILO treaty. The International Labor Organization was never supposed to have any legislative or anything but recommendation powers. And that had a federal state clause, but the charter of the ILO itself provided that it could recommend only, that it had no power to draft treaties or to do anything of any legislative nature such as is proposed in these other treaties. So that there is a considerable difficulty, even in connection with the ILO where there was a distinct provision limiting the power of ILO because of the effort of the leaders of ILO, as is shown by Judge Allen's book, to seize more power, and to make their action obligatory upon the states, in spite of the fact that there is a distinct reservation that it shall have no legislative power and have nothing but recommendation power. So it is a manifestation of the fact that power begets power, and that power planted will be used. That is one reason that we must be so careful, in our opinion, on the grant of power to these organizations flowing from the United Nations.

I am not questioning the advisability of it, or anything like that, but I am just questioning the legal effect of the granting of power.

Now, the federal-state clause has had a curious history in the Commission on Human Rights. The clause provides that in case of a federal state the following provisions shall apply:

(a) With respect to any articles in 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 constituents, 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.

You can see the basis for the claim that that is a reservation of the rights of the states, and that, as I pointed out to Senator Austin in a series of letters, it does not do any such thing in this country, because under our constitutional processes the States have no rights whatsoever under international laws. The ratification of a treatymaking international law takes from the States of the United States any power to act whatsoever. So that by the constitutional process of the United States the very fact of the ratification of the State takes away any power of the States to object to anything that is done under a treaty or any legislation which Congress may pass in implementing a treaty, because they haven't any power to act.

We do not ask Mr. Smith's State to say whether or not it likes the provision of a treaty, or your State, Senator O'Conor. It takes it whether or no, if Congress ratifies it and it becomes the superior law or the supreme law of the United States. So there is nothing that, they can do. If they refer a hundred bills or a hundred acts to the States they have no power. So that the foundation of this thing has been wrong from the beginning.

We have tried to make that perfectly clear to the representatives of the State Department and to Senator Austin.

Now, the curious thing is this: I was handed today by Mr. Finch a copy of the New York Daily News of the 9th of June under the heading "U. N. pact won't clash with States' rights, says Mrs. Roosevelt," in which she announced that the United States had acted to prevent any possible U. N. interference with States rights in this country. The action takes the form of amendments to two U. N. treaties on human rights. The treaties have been under fire as potentially undercutting the United States Constitution. And Mrs. Roosevelt explains that the amendments to be offered will relieve the Federal Government of any responsibility for enforcing all rights reserved to individual States.

The Government would simply promise to call the provisions of the treaty to the attention of the State governments and to recommend them favorably for State action.

And it goes on and discusses that the amendment will be backed by Australia and India, both of which have a federal system of government, and that the federal and state clause would insure that authority remains with each several state and is not transferred in part to the national government by the operation of the treaties, the federal-state balance would be preserved, and the national power would not be increased.

With that situation, I would like to ask leave to reserve any comment on that until after we have been able to see those proposed changes, and we will then submit a brief on our ideas as to the effect of those changes.

The situation which appears in the United Nations Commission on Human Rights is this, and in the United Nations itself, in the Assembly: That the object is not to let the federal states accommodate themselves to their own situation; but to find ways and means by which the federal states, the states of a state, such as we have, can be held to the treaties to take away the present powers rather than to extend them, and that is shown by the resolution which was passed at the last Assembly meeting to the effect that the Commission on Human Rights and the ECO was directed to study ways and means by which the power over federal states could be extended, and that the constitutional situation of each state should be studied.

So that is the situation which evidently has been met in some way by this situation which was presented to us today. For that reason, I ask the right to study them and submit our views at a later date.

Senator O'CONOR. We certainly would be happy to grant that request. As a matter of fact, it might be very helpful to us to have that, and it would be welcome.

Mr. Rix. In connection with this question of States' rights, may I make one more observation which we may have covered before but I cannot express it too strongly. The effect of a treaty, as we have explained it from our viewpoint, is magnified by the realization through this federal state article, and by the use of this word "guarantee," is to this effect: The constitution of my own State, and I think most of the States of the United States, contains specific guaranties of freedom of speech and freedom of the press in just that language. My own State constitution contains this:

Every person may freely speak, write, and publish his sentiment on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or the press.

You will see the difference between that and the proposed draft which I read you before. There is a specific guaranty, guaranteeing to you the right of liberty of speech and press, and I think nearly all of the States of the country have those provisions in there, particularly the States which entered the Union after it was formed, after the United States was formed, because these questions were discussed as to the effect of the so-called guaranty of the freedom of religion and freedom of the press, and in the State constitutions you will find those provisions.

Now, if this proposed draft of the United Nations Covenant on Human Rights were ratified and approved, every provision in every constitution of every state would be abrogated, and they would have no provisions left. Just to show you that my authority for that is not my own statement, or that of our committee or our associates, I want to quote to you from a statement by Mr. Denys P. Meyers, designated as a specialist in international organization in the Office of the Legal Adviser of the State Department, and this is taken from a Department of State bulletin of March 10, 1950, in which he points out that

State laws and constitutions are abrogated by any treaty that may be entered into by the United States after it has been ratified by the Senate.