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TREATIES AND EXECUTIVE AGREEMENTS

WEDNESDAY, MAY 21, 1952

UNITED STATES SENATE,
SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10 a. m., in room P-36, the Capitol, Hon. Herbert R. O'Conor presiding.

Present: Senators O'Conor, Smith of North Carolina, Ferguson, Hendrickson, and Bricker.

Also present: J. C. Sourwine, committee counsel; Wayne H. Smithey, professional staff member; and Charles Webb, assistant to Senator Bricker.

Senator O'CONOR. The meeting will please be in order.

We are to take up Senate Joint Resolution 130, and it occurred to me that a brief announcement as to the procedure might be made. First of all, by direction of the chairman, Senator McCarran, who will be in attendance at these meetings, as well as at the request of other members of the committee, all of whom will be here as soon as they possibly can, I am presiding at the beginning of the hearing because of the request of a number of those present who have come from different parts of the country and whose convenience of course we wish to serve.

I will hear from all that can be heard at this morning's session, and of course continuing throughout the best part of the day. Because of the request of several, I might state that it is the desire of the committee to accommodate anyone who wishes to have his statement incorporated in full in the record. For that reason, we have already

, indicated our readiness to accept the statements in full so that they can be copied into the record even though they may not be read in full at the hearings. I merely mention that because of the time question involved.

We are very honored by the presence of the able Senator from Ohio, the sponsor of the joint resolution, Senator Bricker, and at this point I would like to ask Senator Bricker to proceed.

STATEMENT OF HON. JOHN W. BRICKER, A UNITED STATES

SENATOR FROM OHIO

Senator BRICKER. Mr. Chairman, I might say that I am happy that you have been assigned to hear this. I know you are interested. First of all, I would like to have made a part of the record at the very beginning the resolution itself. The copy that I have does not have Senator Kem or Senator McCarran's name on it. Senator Kem was overlooked when I introduced the original resolution, and Senator

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McCarran was out of town and said he wished to be a cosponsor. Then I reintroduced it, as the chairman will remember, with those names added. I do not know whether the resolution you have there is the original or not.

Senator O'Conor. No; I have the one with their names included, both Senator Kem and Senator McCarran.

Senator BRICKER. I will ask that that be made a part of the record at the very beginning.

Senator O'CONOR. It will be in full. (The resolution is as follows:)

(S. J. Res. 130, 82d Cong., 2d sess.) JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

relative to the making of treaties and executive agreements Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

“ARTICLE

"SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.

"SEC, 2. No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively.

"Sec. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by Act or joint resolution.

"SEC. 4. Executive agreements shall not be made in lieu of treaties.

"Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term.

"The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication.

"Sec. 5. Congress shall have power to enforce this article by appropriate legislation.

"Sec. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.” Senator BRICKER. I thank you very much.

I This is technical, and there are so many details in connection with it that I would like to have made a part of the record at this point at the very beginning a copy of the draft covenant as it stands at the present time, with appended note to the bulletin from the Department of State, which shows the present status of the Covenant of Human Rights, which is involved in this whole matter.

Senator O'Conor. That will be accepted and will be made a part of the record at this point.

(The information referred to is as follows:)

[Department of State attachment to copies of the 1951 draft of the Human Rights

Covenant-Publication 4307 or mimeographed copies--February 26, 1952)

1951 DRAFT OF THE UNITED NATIONS COVENANT ON HUMAN RIGHTS

PRESENT STATUS 1. Attached is the working draft of the United Nations Human Rights Covenant as drawn up by the 1951 session of the Human Rights Commission. It contains articles both on civil and political rights and on social, economic, and cultural rights. These latter were included on the instructions of the 1950 United Nations General Assembly.

2. Subsequent to the 1951 session of the Human Rights Commission, the United Nations Economic and Social Council, on the basis of a proposal submitted by the United States and several other members, recommended that the 1951 United Nations General Assembly reconsider its 1950 decision and separate the draft covenant into two covenants, one to contain civil and political rights, and the other economic, social, and cultural rights. The General Assembly session which terminated in February 1952 followed the recommendation. As a result, whatever is retained, articles 3 to 18 of the 1951 draft presumably will appear in one covenant, and articles 19 to 32 in another covenant.

3. The draft is still tentative. It has never been voted on as a whole by any of the United Nations bodies concerned with it. The United Nations is still engaged in discussing what the substance of the covenant should be and in what form the substance should be expressed. After the United Nations has. approved the draft text in the General Assembly, a determination will then be made by the Government of the United States as to whether it should ratify the covenant.

[From the Department of State Bulletin, June 25, 1951)

ECONOMIC, SOCIAL, AND CULTURAL PROVISIONS IN THE HUMAN

RIGHTS COVENANT

REVISIONS OF THE 1951 SESSION OF THE COMMISSION ON HUMAN RIGHTS

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By James Simsarian" The United Nations Commission on Human Rights, at the seventh session, which met at Geneva from April 16-May 19, 1951, drafted provisions on economic, social, and cultural rights for inclusion in the International Covenant on Human Rights.The Commission acted in accordance with the decision of the 1950 General Assembly that provisions on economic, social, and cultural rights should be included in the covenant.

The Commission on Human Rights also revised the implementation machinery provided in the covenant with respect to the civil and political rights in the covenant. It did not have time, however, during the 5-weeks session to revise the other parts of the covenant.

At the end of the 1951 session, the Commission forwarded the covenant to the members of the United Nations and to the specialized agencies for their comments before the Economic and Social Council considered it at its next meeting at Geneva on July 30, 1951.

The Council will then submit the revised draft of the covenant to the General Assembly as requested by the General Assembly's resolution.”

After the draft covenant is finally reviewed and revised, it will be opened for signature and ratification and will come into force, when 20 countries ratify it. The covenant is in contrast to the Universal Declaration of Human Rights (approved by the General Assembly at Paris on Dec. 10, 1948) since the declaration

1 Mr. Simsarian is assistant officer in charge of United Nations and Human Rights Affairs and also adviser to the United States representative on the Commission on Human Rights.

* For additional materials on human rights, see the following Bulletin references : An International Bill of Human Rights, by James P. Hendrick, February 15, 1948, p. 195 ; Progress Report on Human Rights, by James P. Hendrick, August 8, 1948, p. 159 ; 'United Nations Actions on Human Rights in 1948, by James Simsarian, January 2, 1949, p. 18; Human Rights ; Draft Covenant Revised at Fifth Session of Commission on Human Rights, by James Simsarian, July 11, 1949, p. 3: Proposed Human Rights Covenant Revised at 1950 Session of Commission on Human Rights, by James Simsa rian, June 12, 1950, p. 945. For the United States delegation, see Bulletin of April 23, 1951, p. 670.

3 The General Assembly will convene at Paris the latter part of October or early in November 1951.

was not drafted in the form of a treaty but as a declaration without legally binding force.

The basic civil and political rights set forth in the draft covenant are well known in American tradition and law and relate to the right to life, protection against torture, slavery, forced labor, arbitrary arrest or detention, freedom to leave a country, freedom to return to one's country, right to a fair and public hearing by an independent and impa tial tribunal, right to be presumed innocent until proved guilty, protection against ex post facto laws, right to recognition as a person before the law, freedom of religion, expression, assembly and association, and equal protection of the law.

The Commission decided that the covenant on Human Rights should authorize only states to file complaints with respect to alleged violations of the covenant. The Commission rejected a proposal that individuals, groups, and nongovernmental organizations also be authorized to file complaints.

The draft covenant on Human Rights now consists of 5 parts. Part I and II relate to civil and political rights, part III sets forth the economic, social, and cultural rights, part IV sets forth the complaint machinery, part V sets forth the new reporting requirements drafted at the 1951 session of the Commission, and part VI contains the federal state article, the territories article, and several procedural articles.

In the new part III articles were drafted on most of the economic, social, and cultural rights enumerated in the Universal Declaration of Human Rights. The provisions of this part of the covenant relate to the opportunity to work, conditions of work, social security, housing, standard of living, health, maternity, motherhood, children, young persons, trade unions, education, culture, and science.

In drafting such provisions, the Commission recognized that they differed in a number of respects from the civil and political provisions of the covenant. Those differences were acknowledged in the covenant in a number of ways:

(1) The economic, social, and cultural rights were recognized as objectives to be achieved "progressively." In the case of the civil and political rights, states ratifying the covenant will be under an obligation to take necessary steps within a reasonable length of time to give effect to these rights. A much longer period of time is clearly contemplated under the covenant for the achievement of the economic, social, and cultural rights. The term "rights" is used with respect to both the civil and political provisions as well as the economic, social, and cultural provisions. This term is used, however, in two different senses. The civil and political rights are looked upon as "rights" to be given effect almost immediately. The economic, social, and cultural rights although recognized as "rights” are looked upon as objectives toward which states adhering to the covenant would undertake to strive.

(2) It was recognized that the economic, social, and cultural rights were to be achieved by many means and methods, private as well as public, and not solely through legislation. Article 19 provides that States will take steps "with a view to achieving progressively the full realization of the rights recognized in this part of the present Covenant.” The phrase "with a view” was stressed as pointing to the achievement of conditions in a state whereby these rights could be secured through private action as well as governmental action. The obligation of a state ratifying the covenant will be to take steps for the promotion of conditions for economic, social, and cultural progress and development. The U. S. S. R. repeatedly urged that the economic, social, and cultural rights be stated in terms of state legislation only but the other members of the Commission rejected this approach.

(3) Simple implementation arrangements were drafted for the economic, social, and cultural rights in contrast to the implementation machinery drafted for the civil and political rights. In the case of the civil and political rights, the implementation machinery established authorized one state to complain against another state if the latter was violating the covenant. There was wide sentiment in the Commission that this complaint procedure would not be appropriate for the economic, social, and cultural rights since these rights were to be achieved progressively, and the obligations of states with respect to these rights were not so precise as those with respect to the civil and political rights. The Commission wished to stress the importance of assisting states to achieve economic, social, and cultural progress rather than complaint against states. Accordingly, a procedure was devised whereby states would furnish reports concerning the progress made in the observance of the economic, social, and cultural rights set forth in the covenant.

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