Imagini ale paginilor

It is equally disturbing to note that the proposed Convention on Gathering and International Transmission of News contains an article which might be construed as authorizing peacetime censorship; and that the draft statute for an International Criminal Court, among other things, expressly proscribes trial by jury; contains no limitation on venue; and is incurably vague on the subject what system of law shall be applied by the court.

Whatever may be the ultimate holding as to the possibility of annulment of a constitutional provision by treaty, significantly no treaty has ever been held unconstitutional; and there can be no question that a treaty supersedes a prior conflicting statute.

A number of suggestions have been advanced to avoid the pitfalls whose outlines have been sketched above. There is the question of reservations which has raised considerable disturbance under a recent opinion of the internal court holding that such reservations are effective only if they do not deal with or change the substance of treaties. There is also the so-called state-federal clauses in the treaties themserves. Finally, there is the one which the American Bar Association supports under action of its house of delegates in February, for amendment of the Constitution and which is the subject of a number of resolutions introduced both in the Senate and in the House.

My own personal view is that the form of amendment approved by the American Bar Association is the best. I think that is the best that has been offered up to this time. It represents a great deal of thought and study by a great many people who have different views on many of the subjects affected by it, but, generally speaking, there is a joint view on assembly.

I might mention that the thought occurred to me as I came into the room this morning in that connection that the Declaration of Independence was signed by 58 men. The Articles of Confederation were signed by 59. It is my humble opinion that the matter which will come out of this committee, signed, as it is, by almost that number, will be at least equally significant in history.

Senator O'CONOR. Thank you.
Have you any questions, Senator Hendrickson?

I just want to say it is a great privilege to have been here today, Colonel Deutsch.



Senator O'CONOR. The next representative on the list is Mr. Vermont Hatch. Mr. Hatch, you are a member of the bar of New York?

Mr. HATCH. Yes, sir.

Senator O’CONOR. Would you be kind enough to give your address for the record.

Mr. Hatch. My address is 14 Wall Street, New York City. My first name is the same as the State, Vermont.

Senator O'Conor. Will you just proceed, then, and may we ask at the outset whether you anticipate addressing yourself to any particular phase of the resolution?

[ocr errors]

Mr. HATCH. I had, Mr. Chairman, prepared some notes on various phases of the resolution. I think many of them have been adequately touched upon already, so that my remarks can be fairly limited and they will deal more with different phrasings of points that have already been touched than with new points.

Senator O'CONOR. We would desire to have your entire statement incorporated in the record, if we may, unless you have some objection.

Mr. HATCH. It is scarcely in shape to do so. It is all dog-eared. I did not do it until a late hour last night.

Senator O'CONOR. All right.

Mr. Hatch. First, let me say that I very greatly appreciate the opportunity of coming here to express the views that I may have as a member of the committee and law of United Nations of the American Bar Association. I have been a member of that committee for about 2 years and we have studied this subject diligently. We have given it, as I am sure you realize, everything we have in the nature of research and reason and we have come up with this amendment which has been gone into before you.

I want to talk for just a moment about the first point of our suggested amendment; namely, that no treaty provision which conflicts with a provision of the Constitution shall be effective. While there have been great objections that I have heard voiced here and there by certain people to points 2 and 3 of our amendment, I have never heard an objection to that first point of our amendment, which in my judgment rises to the dignity of an answer to the serious question attempted to be met. A number of gentlemen say: "Why provide that? It is already the law, as stated many times by the Supreme Court."

A recent report, which will unquestionably be filed with you by a committee of the Association of the Bar of the City of New York came to the conclusion after study that that sort of a provision was undesirable. Let us take the position that it is already the law for a moment. If it is I am at a complete loss to understand what in heaven's name can be the objection to saying so. One objection has been voiced as an objection to codification. Well, it is not the codification. It is a very short, succinct, direct sentence, and no less an advocate of the status quo in this regard, as I understand it, than Professor Chaffee of Harvard, who I think is here, recently wrote that such a provisionneed not detain us long. It is unobjectionable in itself, but unnecessary.

Further in the discussion of that point he had this to say. He admitted that the question had never been squarely decided by the Supreme Court, saying:

No doubt, the question whether the treaty power is subject to constitutional limitations has never been clearly decided by the Supreme Court, because fortunately no American treaty has come near enough to violating the Constitution to make the issue worth litigating.

I respectfully submit that that is not the look-ahead at this time.

In a report on the subject which I referred to before, attention was called to subdivision 2 of article 18 of the draft Covenant on Human Rights as bearing upon the lack of necessity for such a provision as that first sentence. That reads, if I may quote, as follows:

Nothing in this Covenant shall be interpreted as limiting or derogating from rights and freedoms guaranteed under the laws of any Contracting State or any Convention to which it is a party.


There are two phrases there that I want to call attention to, that is, "Nothing in this covenant may be interpreted”—that is importantand the other is respecting the rights which are guaranteed. Carefully read, that only says that nothing in the covenant shall be interpreted as limiting or derogating from rights and freedoms guaranteed under the laws of the contracting parties, but it does not say that legislation passed pursuant to the covenant may not derogate from those rights and freedoms and derogating legislation is specifically provided for in article 2 of that draft covenant. I am only answering argument to that by such a clause. The other answer to it, if I may say so, is that it is awfully easy to slip the wrong nomenclature, the wrong phraseology, into some of these things. We talk about the rights guaranteed by the Constitution. The Constitution does not guarantee a single right so far as I am aware. We have already talked about the first amendment. Congress shall make no law in that respect, so if you talk about a particular covenant, if you talk about inserting a clause which says that rights guaranteed by our Constitution shall not be infringed by that covenant, I submit that you have left a new avenue quite open and I think the only way to close it is by saying what we propose in one short sentence.

Senator O'CoxoR. Will you read that sentence right there?

Mr. Hatch. Yes, indeed; I will be delighted to. It says: A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect.

I submit that is codification. I submit it is direct, short, succinct, and clear. I am not going to labor the point further. I know your time is short and I know that you have other witnesses who want to be heard, but with the deluge of multipartite treaties being negotiated and proposed, dealing with an amazing number of subjects, many of them heretofore regarded as strictly within our domestic jurisdiction, and dealing with matters which would affect the everyday activities of our citizens, it is high time, in my judgment, that the point I am discussing be made an indelible, constitutional provision, so that whether necessary or not it may be there to be read, respected, and observed, by all, including those who sit in international committees and commissions, boards, and bodies and negotiate, compromise, and propose multilateral conventions for the remaking of the social fabric of the world, if not, indeed, the establishment of world government.

I am not going to bother you with an argument I had prepared here. It is rather more fascinating perhaps than important. I think a pretty good argument can be made along the lines suggested by a number of my colleagues for the proposition that a treaty may be adjudicated to be entitled to stand parallel with a constitutional provision and to control where the agitation or the challenge comes about in a matter purely or predominantly international in character. There is that possibility, in my judgment.

Parenthetically, I have never seen it denied to date that to establish a world government with our participation would require constitutional amendment. The question arises immediately how many delegations to international bodies over how many of our domestic affairs could take place without a world government in fact being established.

As to point 2, to give it a little different coverage—that is about the treaties not becoming self-executing. To me that is very important,

for all of the reasons which have been mentioned and for one more which I am going to mention. Let us go back to the Fugii case and articles 55 and 56 of the United Nations Charter. The district court in its opinion there decided that the alien land laws werein conflict with the plain terms of the Charter and with the purposes announced therein by its framers. And they said that the discrimination against Mr. Fugii owning land wascontrary both to the letter and to the spirit of the Charter, which as a treaty is paramount to every law of every state in conflict with it.

As I read the decision of that court, they held articles 55 and 56 of the Charter to be self-executing, but as I read the opinion of the supreme court rendered in April, they are prepared to disregard articles 55 and 56 and they base their decision on the fourteenth amendment.

Senator HENDRICKSON. Are you referring to the California Supreme Court?

Mr. HATCH. Yes, sir; indeed, I am.
Now, in one of the articles I have seen on this subject it is said:

The opinions should remove any doubt as to the non-self-executing character of the United Nations Charter provisions there involved.

With the greatest deference to the people who wrote that, I suspect it is going to be the gentlemen in this city sitting as he Supreme Court of the United States who are going to have the final word on that subject, but, in any event, articles 55 and 56 of the United Nations Charter have been a treaty in this country since 1945, 7 years ago, and the courts are still debating whether certain provisions of them are or are not the supreme law of this land, binding on you, me, and binding on every individual. Any such uncertainty as to what law governs us is simply intolerable. The people are suppposed to know the law. Indeed, I think the old maxim about ignorance of the law being no excuse could certainly be trotted out on that, because how are you going to know? Therefore the amendment would have this distinct additional advantage: We would all know, as Mr. Rix mentioned, when the impact of these things struck.

As to point 3 of our amendment, I want to just illustrate what it is that I think we have to beware of and what that is intended to stop by a quotation, and I am cutting this as short, Mr. Chairman, as I can. Mr. Moses Moskowitz, who is an advocate of the Covenant on Human Rights, said in the American Bar Association Journal of April 1949, on page 359 :

Nor should the terming of the project as "revolutionary" cause deep concern. The idea of "supranational supervision" of the relationship of a state to its own citizens, which is the real crux of the matter, revolutionary as it may appear, is not without precedent.

He goes on to mention the attempts to protect minorities under the treaties like the Locarno pact following the League of Nations and then he said this at page 285 :

Now, as to the argument that relations between governments and their citizens is a matter which is excluded from the intervention of the United Nations, it is of a purely legalistic character and excludes all considerations of political ethics. In the first place, the Charter does not define what matters are “essentially within the domestic jurisdiction of any state." It is a matter of interpretation. Perhaps the "correct position would be that once a matter has become, in one way or another, the subject of regulation by the United Nations, be it by resolution of the General Assembly or by convention between member states at the instance of the United Nations, that subject ceases to be a matter being essentially within the domestic jurisdiction of the member states."

There is more. It goes on to say:

As a matter of fact, such a position represents the official view of the United Yations, as well as of the member states that have voted in favor of the Universal Declaration of Human Rights. Hence, neither the declaration, nor the projected covenant, nor any agreement that may be reached in the future on the machinery of implementation of human rights, can in any way be considered as violative of the letter or spirit of article 2 of the Charter.

Senator Bricker, I think, has called this matter a loophole. I think it is and I think it is also a pit and if we fall into it while gazing at the stars we have no one to blame but ourselves. It is said that that instrument has served well for 150 years and

not be tampered with in this regard. I say that had not those who oppose amendment along the lines suggested with their host of like thinkers fostered and developed a revolutionary change in the concepts and functions of treaties, treaty law, and delegation of domestic matters to international organizations, there would be no need to change the Constitution. They are the mainsprings of the necessity of amendment.

As to the executive agreements, our amendment did not deal with that.

May I go on for just a moment?
Senator O'CONOR. Yes, sir.

Mr. Hatch. I reached one tentative conclusion and that is that what executive agreements need as much as anything else is to be saved from their friends. The executive agreement has been used for many, many years, as I understand it, and executive agreements apparently are very useful instruments when used properly, and what is proper depends on one's own view, of course.

The extent to which the scale between the executive agreements and treaties has shifted is mighty interesting. Mr. Borchard's article in 54 Yale Law Journal gives you an account year by year, and Mr. McClure in his book does, too. Mr. McClure points out that during the first 50 years of government under the Constitution the Presi. dent is known to have entered into some 27 international acts without invoking the consent of the Senate, while 60 became law as treaties. In the second half-century there were 238 Executive agreements and 215 treaties. Now it has gone the other way, and for the third similar period there were 917 Executive agreements and only 524 treaties, so you can see exactly what has happened.

However, getting back to that question of protecting these Executive agreements from their friends, Mr. McClure says, and he has been quoted earlier in this hearing:

The result is that for controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as Executive. agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable as saving the time of the House of Representatives without increasing the present burdens of the Senate.

I do not see quite how that could have been written without an eye to history. I should say with an eye to past history. However, he

« ÎnapoiContinuați »