ratify the Convention with an appropriate reservation; this is what some other countries have in fact done and which we should do whenever a treaty provision presents a possible constitutional issue. Obviously, the U.S. neither can nor should ratify a treaty that conflicts with any constitutional guarantee unless the conflict can be satisfactorily resolved by a reservation to the treaty. This very sound approach was adopted, for example, by the Senate Foreign Relations Committee when it recommended U.S. ratification of the Genocide Convention. It is interesting to note, in this connection, that the American Bar Association, which had since 1949 opposed U.S. ratification of the Genocide Convention, reversed itself in February 1976 and now supports U.S. ratification with appropriate reservations.

16

In the past two decades federal legislation and judicial decisions brought about most, if not all, of the domestic legal reforms that various civil rights advocates in the late 1940's and early 1950's hoped to achieve through international human rights treaties. This would suggest that the individuals who in the past opposed U.S. ratification of such treaties for the very reasons that the civil rights advocates supported them have little to lose if they are ratified.

B. Human Rights Policies

During the first fifteen years of its existence, the UN engaged in two principal human rights activities. The first consisted of the development of international human rights norms through human rights studies and the drafting of human rights instruments. The second principal activity consisted of the gradual development of the so-called "human rights law of the UN Charter."' This is the body of law that the various organs of the UN evolved by interpreting and applying the human rights provisions of the Charter.

Although the U.S. had initially been very active and influential in the UN drafting effort, its announced decision not to ratify any human rights instruments greatly diminished its influence in this area. The U.S. did, however, play an important role during this same period in promoting human rights debates in the political organs of the UN and in supporting UN resolutions on various human rights issues, including resolutions relating to racial discrimination in South Africa. It can of course be argued and it is no doubt true that some U.S. human rights stands were motivated by "cold war" considerations for they were directed mainly at activities of the Soviet Union and its allies. But it must also not be forgotten that some of these activities, particularly the Soviet slave labor camps and the violations of human rights in Hungary and Tibet, were gross violations of human rights that deserved to be condemned by the UN.

By supporting these efforts in the UN, the U.S. played a vital role in establishing two important and interrelated legal principles: first, that a UN Member State violates its obligations under Articles 55 and 56 of the Charter if its government pursues a policy involving massive violations of those human rights that are proclaimed in the Universal Declaration; and second, that a

Member State engaging in such violations may not validly invoke tha domestic jurisdiction clause of the UN Charter to prevent the UN from adopting resolutions condemning these practices.

Although the U.S. supported various human rights efforts in the political organs of the UN, it sided in the late 1940's and 1950's with the Soviet Union and the United Kingdom, among others, in opposing efforts to empower the UN Commission of Human Rights to deal with human rights complaints by individuals. 17 These countries took the position that such action by the Commission would constitute intervention in the domestic affairs of Member States and was not authorized by the UN Charter. The U.S. position was in all likelihood motivated by two considerations. First, as we have seen, this was a period when the treatment of various racial minorities in the U.S. was not receiving the legislative and judicial attention that it should have received. It was quite clear, consequently, that private petitions submitted to the UN from some of these groups would have been politically embarrassing to the U.S. Second, the very Congressmen and other U.S. leaders who opposed U.S. ratification of international human rights treaties also opposed efforts to weaken their position that human rights were matters of domestic concern. For if human rights were matters of international concern, it could not be argued very convincingly that the U.S. lacked the constitutional power to conclude human rights treaties. By not supporting efforts in the UN to empower the UN Human Rights Commission to receive private complaints, the Executive Branch no doubt avoided Congressional charges that it was "internationalizing" human rights.

III. A NEW ERA

United States policies relating to international human rights began to change in the mid-1960's. The Vietnam War impeded and slowed down these developments, but the past three years have witnessed significant changes in U.S. international human rights policies. They have been brought about in large measure by Congressional action; this is not without irony given the fact that Congress, more than any other branch of the U.S. Government, bears the responsibility for reversing the early pro-international human rights policies of the U.S.

In the fall of 1973, U.S. Representative Donald M. Fraser of Minnesota, chairman of the Subcommittee on International Organizations and Movements of the House Foreign Affairs Committee, began to hold hearings on human rights and U.S. foreign policy. 18 The hearings marked the first time that Congress availed itself of the opportunity to give serious consideration to current developments in the international human rights field, to examine proposals designed to strengthen the role of the United Nations in protecting human rights, and to explore the advisability of giving human rights a higher priority in the hierarchy of foreign policy objectives of the United States. 19 From these hearings emerged a thoughtful and well-informed report, entitled

"Human Rights in the World Community: A Call for U.S. Leadership." 20 It contained twenty-nine separate recommendations, addressing the major international human rights issues of the day as they relate to U.S. foreign policy.

21

In addition to urging U.S. ratification of various international human rights conventions, the Fraser Committee called on the Executive Branch to play an active pro-human rights role in various international organizations and to give human rights considerations serious attention when formulating U.S. foreign policy. These recommendations and the periodic follow-up hearings that Congressman Fraser has held have already resulted in important changes. After the Fraser Committee chided the Department of State for assigning only one official on a permanent basis to deal with human rights matters, the Department established the post of "human rights officer" in each of its Bureaus. The Fraser Committee had urged some such action to provide an adequate bureaucratic structure within the State Department to ensure that human rights issues received a hearing at various policy-making levels. In the meantime, the State Department has also established an "Office of Coordinator for Humanitarian Affairs" that reports directly to the Under-Secretary of State. The Assistant Legal Adviser for Human Rights, also a new position, is responsible for legal matters affecting human rights. Thus, for the first time in our history we now have an institutional structure which gives U.S. foreign policy-makers the opportunity to be informed about the human rights implications of their actions. This is an important innovation that other foreign offices should also be encouraged to adopt.

In the past few years the U.S. has reversed its earlier position and come out strongly in favor of UN procedures for dealing with individual complaints charging violations of human rights. A recent statement on this issue, made by Ambassador Philip E. Hoffman, U.S. Representative to the UN Human Rights Commission, signals an important U.S. policy change that was recommended by the Fraser Committee. Speaking on behalf of the U.S., Ambassador Hoffman said:

Perhaps the greatest difficulty which the Human Rights Commission labors under in its delicate and difficult tasks is the propensity of sovereign nations to be fully - if not furiously aware of the shortcomings of other countries relating to human rights — but to remain blithely unconscious of their own delinquencies. There seems to be an overwhelming tendency by most governments to express concern only when human rights violations occur elsewhere and to invoke "domestic jurisdiction" as a barrier to examination of violations within their own boundries.

Under the procedures laid down in Economic and Social Council resolution 1503 (XLVIII) nation states will now have the opportunity to cast their gaze inwards — to recognize such human rights violations as occur on a and consistent basis within their own boundries — and to ascertain the degree of international concern with regard to these matters.

gross

And this international concern is justified. It is justified if the existence of

the Human Rights Commission is justified or that of the United Nations itself. Claims that abasement of man, the cruelties or oppressions inflicted upon him, are matters for internal concern only are not appropriate on the part of nations subscribing to the United Nations Charter. And this applies to oppressions ranging from unjustified imprisonment, torture, and restrictions on freedom of speech, of movement, of ideas, all the way up to that most egregious of all violations-apartheid. What is the purpose of the Human Rights Commission if this is not the case?.

Mr. Chairman, to indicate my Government's determination to support these procedures we have decided on the following general policy. When the Subcommission refers a situation to the Human Rights Commission as revealing a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission under ECOSOC resolution 1503 . . . the United States will support a thorough study. The U.S. made clear that it was committed to support such UN studies even if the allegedly delinquent state was an ally of the U.S.

22

The U.S. recently adopted a similar position in the Organization of American States. Here the U.S. was instrumental in seeing to it that the General Assembly of the OAS discussed the annual reports of the Inter-American Commission on Human Rights, which had not been done in the past. Of particular importance, in this connection, is the statement of U.S. Assistant Secretary of State William D. Rogers to the 1975 meeting of the OAS General Assembly. Speaking with particular reference to the Inter-American Commission's report on conditions in Chile, Mr. Rogers noted:

The primary issue here, now, is not whether there may have been some defects or inadequacies in the IAHRC Report. It is now somewhat dated. The more important issue is the future the deep concern which we all have for the promotion of respect for human rights and the elimination of human rights violations wherever they occur, and our ability to build and strengthen an international system to consider matters so vital to the common human values of this hemisphere. In this connection the suggestions and recommendations of the Commission for the future deserve the attention of all, including the Government of Chile. . .

We do not regard human rights as an exclusively domestic concern. The states who are members of our Organization adopted and have subscribed to an international series of standards. These standards are set down in the Universal Declaration of Human Rights and in the American Declaration of the Rights and Duties of Man. We are fortunate that the OAS has given the responsibility of inquiry, reporting and recommendation, when violations of these standards are alleged, to its autonomous, independent and expert Inter-American Human Rights Commission.

...

My delegation further believes that the IA Human Rights Commission should remain seized of the issue. A process of inter-action between the Government of Chile and the Human Rights Commission is desirable,

including opportunity for the Commission to keep its information up-to-date by all means appropriate.

23

In conclusion, I would stress that this agenda item represents a test of the system and of the capacity of the members of the Organization of American States rationally, objectively and effectively to weigh human rights issues collectively. In a sense, all of us are on trial here-all of us, in our capacity to articulate a continuing standard and to develop fair and effective procedures for the application of that standard to individual cases. Consistent with the foregoing statement, the U.S. lobbied for and obtained the adoption of a resolution by the OAS General Assembly that called on Chile to heed the recommendations of the Inter-American Commission on Human Rights and authorized that body to keep conditions in Chile under observation.

24

The Hoffman and Rogers statements are important not only because they reflect the increased willingness of the U.S. today to actively support and initiate efforts by international institutions to develop effective methods to deal with violations of human rights. The legal consequences of these policy statements are equally significant, for they constitute an unambiguous acknowledgement by the U.S. Government that it considers human rights to be matters of international concern. This position has been formally affirmed by Secretary of State Kissinger. 24a It follows that it is the view of the U.S. Government that international law today permits one country to protest against and challenge serious violations of human rights by another country without being guilty of unlawful intervention into that nation's domestic affairs.

In the long run, the most significant action involving international human rights that has been taken by the U.S. in recent years may well be a series of Congressional enactments. Thus, in 1974 Congress passed an amendment to the Foreign Assistance Act of 1961, which read as follows:

Sec.46. Chapter 1 of part II of the Foreign Assistance Act of 1961 is amended by adding at the end thereof the following new section:

"Sec.502B. Human Rights.-(a) It is the sense of Congress that, except in extraordinary circumstances, the President shall substantially reduce or terminate security assistance to any government which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman or degrading treatment or punishment; prolonged detention without charges; or other flagrant denials of the right to life, liberty, and the security of the person.

"(b) Whenever proposing or furnishing security assistance to any government falling within the provisions of paragraph (a), the President shall advise the Congress of the extraordinary circumstances necessitating the assistance.

"(c) In determining whether or not a government falls within the provisions of subsection (a), consideration shall be given to the extent of cooperation by such government in permitting an unimpeded investigation