ishment, the death penalty, and other punitive measures permitted by the Constitution. Without this reservation, those who have certain legislative agendas-the abolition of capital punishment, for example-may be tempted to outflank our constitutional processes and ask a judge to declare the death penalty illegal under the Convention. In my opinion, public policy of such serious moment should not be formulated in such an extra-constitutional fashion.

3. Reservation to Article 30. At the present time, the International Court of Justice has not fully lived up to the hopes of those that supported it after World War II. For the past few years, the United States has chosen a course of respectful distance from the Court because of the manner in which it adjudicated the dispute brought by Nicaragua. The policy of using the Court on appropriate occasions is the correct policy. Until major reforms in the Court are brought about to change its current political cast, the United States should not agree to grant automatic jurisdiction to the Court in disputes arising under the Convention. According to Article 30 of the Convention, a reservation not to accept the compulsory jurisdiction of the ICJ made be made at the time of ratification. It may at any time thereafter be withdrawn. However, if the United States does not make its reservation now, it will not be able to in the future unless it denounces the Convention altogether. It is far better the take the cautious route permitted by the Convention, and reserve now while it may be done while we await future developments in the Court.

UNDERSTANDINGS

Article 1. It is my opinion that the definition of torture and the liability for acts of torture need to be appropriately clarified to comport with essential requirements of due process. Specific clarifications need to make clear Anglo-American understandings of the substance of the offense and the extent of liability under the Convention. These understandings are part of the one of the most fundamental attributes of the Rule of Law, namely, nullum crimen, nulla poene, sine lege: there may be no punishment without prior clear standards established in the law. To adhere to a Convention without the clarifications that our tradition of protection of the accused requires would be a violation of the legal tradition enshrined in our adherence to due process.

In that vein, I am deeply troubled by the change in the latest State Department version that requires only "awareness" of an activity constituting torture rather than "knowledge." The explanation of the Department of State is that "awareness" means “willful blindness." If that be the case, then "awareness" is a particularly weak term to carry such a meaning. In the history of criminal law, the term "knowledge" is a far better concept, for it means primarily that there be must be specific intent, a necessary prerequisite in our law to criminal liability. Any concept that might fasten the extreme sanction of this Convention to acts of mere negligence is contrary to our deepest traditions of due process.

Article 3. To deport or extradite a person to a country where there is a possibility of his being tortured is prohibited under this Convention. The Convention uses the term "substantial grounds." If, as the State Department suggests, "substantial grounds" mean only "more likely than not," then much of the protection of the Convention is undone. If we are to use an appropriate domestic standard for courts to use, the best analogous standard should be "a well-founded fear of political or religious persecution" only applied in this context to torture.

Article 14. Any state should be cautious in asserting extraterritorial jurisdiction. The purpose of the Torture Convention is to bind states in the prevention and prosecution of those who commit such heinous acts. The Convention was not designed to change the internal civil law of any country. The understanding simply makes the point more clearly.

DECLARATIONS

That the Convention be non-self-executing. Many decades ago, Senator John Bricker proposed a constitutional amendment that would have required that all treaties be non self-executing. The amendment failed. But experience has shown the principle to be a good one. By requiring implementing legislation, our constitutional process of law' making is preserved. Otherwise, our courts will be authorized to interpret a treaty that might have been negotiated for important foreign policy reasons but without sufficient thought as to its domestic repercussions. Only the United States Senate would have the chance for a second look. By requiring implementing legislation, however, the entire Congress, and the President as well, can carefully craft the details of implementation so that courts have sufficient guidance to be able to apply the Convention clearly and consistently.

I cannot close without an answer to the charge of Amnesty International in its November 2, 1988, position that reservations to the Convention "will further erode the United States credibility regarding its commitment to promoting human rights throughout the world." The charge irresponsible and patently false. When the German people celebrated the opening of the Berlin Wall, we saw them waving the German and the American flag, not the banner of the United Nations. Just before the students were crushed in Tiananmen Square, they raised a facsimile of the Statue of Liberty. National Public Radio reported last week that the symbol of freedom for the Rumanian people was the United States system of freedom. When the Panamanian and, earlier, the Grenadan people celebrated their liberation from tyranny, they thanked this country. When the dictator Marcos was removed and the government of President Aquino needed to be protected, the Philippines called upon the United States. When Poland and Hungary led the way in Eastern Europe to freedom, they cheered the President of the United States. When the students of the Soviet Union listened intently to Ronald Reagan, they heard the message of hope. This country and its Constitution is the beacon of human rights. To assure that the Convention of Torture lives up to our constitutional standards is, in fact, a duty we owe to the cause of human rights.

The CHAIRMAN. Thank you very much, indeed.

Next we will hear from Mr. James Silkenat, Chairman of the Section of International Law and Practice of the American Bar Association.

Mr. Silkenat.

STATEMENT OF JAMES R. SILKENAT, CHAIRMAN, SECTION OF INTERNATIONAL LAW AND PRACTICE, AMERICAN BAR ASSOCIATION, NEW YORK, NY

Mr. SILKENAT. Good morning.

I am Jim Silkenat, Chairman of the ABA Section of International Law and Practice and Chairman of the International Human Rights Committee of the Association of the Bar of the City of New York.

I am in the private practice of law in New York City with the firm of Morrison & Forster.

I am appearing here today on behalf of the ABA and the President of the ABA, L. Stanley Chauvan, of Kentucky, because of the ABA's firm support for U.S. ratification of the U.N. Convention Against Torture.

We commend the committee's prompt attention to this issue and the Bush administration for bringing this package to you as promptly as it has.

Support for the torture convention has been the official policy of the ABA since 1986. At that time, my section prepared a report and a resolution which was adopted by the ABA House of Delegates, representing 350 some-odd lawyers from across the United States, urging the United States to ratify this convention.

Significantly, that action was simply in support of ratification of the convention. A conscious decision was made to adopt no formal policy by the ABA on any of the reservations, understandings, or declarations that existed at that time.

Nevertheless, while we will not oppose the inclusion of some qualifying language with regard to the convention, we wish to emphasize the importance and unity of the convention as it was unanimously approved by the U.N. General Assembly in 1984 without any qualifications.

If torture continues to exist, as it surely does, why should we bother with yet another treaty which we will observe and which

the outlaws of the world will ignore? What difference will these few thousands words make?

The short answer is, as lawyers, we must believe that words have meaning; that even law that is not likely to be enforced by certain countries is our only enduring hope and salvation; that ultimately it is the rule of law which distinguishes us from the torturers of the world.

This treaty would establish some important mechanisms that would make torture less likely by all states and would give us, give the United States, an added role in making sure that that comes true.

It is ironic that consideration by the committee of the torture convention is occurring now, at a time when human rights are finally being recognized in nations where freedom was once thought to be only a dream.

As a recent commentary in Newsweek magazine observed, human rights are not an add-on or a frill, an extra sentence in a "real politik" speech. They are what the fight is all about. It is all the more important, then, that the United States add its support to existing international obligations and ratify this treaty.

On behalf of the American Bar Association, I urge the committee to approve the convention against torture.

[The prepared statement of Mr. Silkenat and addenda follow:]

PREPARED STATEMENT OF JAMES R. SILKENAT

Mr. Chairman, and Committee members: My name is James R. Silkenat. I am in the private practice of law in New York, and I currently serve as Chairman of the Section of International Law and Practice of the American Bar Association. I am grateful for the opportunity to appear before you today on behalf of the President of the ABA, L. Stanley Chauvin, Jr. of Louisville, Kentucky, as the Foreign Relations Committee considers this important step toward the eradication of torture in the world.

First of all, I wish to commend you and the other members and staff of the committee, for the promptness with which today's hearing is being conducted. Indeed, the credit is equally due President Bush and his colleagues in the State and Justice Departments, who have seriously undertaken their review of the treaty. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Treaty Doc. 100-20, was submitted to the Senate in May 1988, and this Committee has acted expeditiously in scheduling action today. It is our commitment to work with you and the Executive Branch to assure this treaty is ratified by the United States this year.

As an aside, however, I also wish to express my sincere hope that this will be the first of a series of such hearings on important treaties to which the Senate will give its advice and consent to ratification this year. While Secretary Baker is to be commended for listing ratification of the Torture Convention as one of the highest treaty priorities for this Administration, I do hope that consideration of other, pending treaties against racial and gender discrimination, among others which have been languishing for over a decade-will be given prompt attention as well.

I am reminded of the December 1988 speech at Georgetown University by then President of the ABA, Robert Raven on the commemoration of the 40th anniversary of the approval by the United Nations of the Universal Declaration of Human Rights. After reviewing the substantial progress in recent years in fashioning new commitments to the rule of law in our dealings with other countries, President Raven listed as his first priority for action in the 101st Congress the prompt ratification of the six pending human rights treaties. A year later we are moving on one, but there remain the conventions on Discrimination Against Women, on Racial Discrimination, the American Convention on Human Rights, and the important treaties to full-and finally-implement the Universal Declaration, the Covenants on Civil and Political Rights and Economic, Social and Cultural Rights. So while we commend our progress, we should not lose sight of the reality of our unfinished

work, an agenda which might be more manageable if the Senate were to more regularly consider sending treaties.

Mr. Chairman, the American Bar Association's support for the Torture Convention has been the official policy of the ABA since February 1986. At that time, the Section of International Law and Practice prepared a report and a resolution, which was adopted by our House of Delegates, urging the United States to ratify the Convention Against Torture. Significantly, that action was in support of ratification of the treaty, along, and a conscious decision was made to adopt no formal policy on any reservations, understandings or declarations. Thus, while we will not oppose the inclusion of some qualifying language, we wish to emphasize the importance and unity of the treaty as it was unanimously approved by the United Nations General Assembly December 10, 1989, without any qualifications. We believe that failure to ratify this basic statement of our civilized revulsion against torture, particularly after the United States played such a leading role in fashioning the Convention, would make us a ready target for those who would disparage our commitment to the rule of law in governing the relations among nations.

The United Nations has been undertaking efforts to abolish torture for many years, and the Convention Against Torture is one result of these efforts. In 1973, the United Nations adopted a resolution rejecting any form of torture. The next year it launched the initial stage of a program to set standards for the prevention of torture. The first official declaration against torture was issued by the United Nations in 1975, and that declaration served as a basis for the development of the Convention Against Torture before us today. Mr. Chairman, at the beginning of this Committee's hearings on June 26, 1984 on the practice of torture by foreign governments, you observed that:

The moral and legal prohibitions against torture have been increasing since 1948 when the United Nations stated in the Universal Declaration of Human Rights that, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The Geneva Convention of 1949, the International Covenant on Civil and Political Rights, a variety of United Nations rules, codes and declarations including the 1975 Declaration on the Protection of All Persons From Torture, and human rights conventions adopted by the organization of American States, the Organization of African Unity and the European Community make it clear that torture is absolutely forbidden by international law. Yes, in spite of this ever-growing body of law, individuals are subject to torture in 198 countries according to Amnesty International's latest report.

If this is the case, as it surely is, why should we bother with yet another treaty we will observe, and the outlaws of the world will ignore? What difference will these few thousand words make? The short answer is, as lawyers we must believe words have meaning, that law-even law not likely to be enforced by some police forceand the rule it generates is our only enduring hope and salvation. That, ultimately, it is the rule of law which distinguishes us from the tortures of the world. This treaty would establish some important mechanisms.

The convention establishes within the body of international law the crime of torture, as well as "cruel, inhuman or degrading treatment or punishment" which do not amount to torture as it is defined by the treaty.

Importantly, the convention establishes a system of universal jurisdiction under which there can be no "safe haven" for torturers. The convention requires all states to exercise jurisdiction over torture committed in their territory, and provides that states parties either extradite or prosecute the offender. This provision is similar to the provisions found in the hijacking conventions and other antiterrorist conventions the United States has ratified.

Under the Convention, victims of torture are afforded the right to have their complaints and their claims investigated as well as to be entitled to the establishment of a fair and adequate compensation mechanism. The treaty also ensures that statements which are extracted as a result of torture may not be used against the victim as evidence, thus removing a major "incentive" for the use of torture.

The convention has established a Committee Against Torture, which receives reports on ratifying states' implementation of the convention and information about alleged acts of torture which it may then investigate. The findings of the committee are extremely important in lending international weight to the fight against torture.

The committee serves more as an investigative body than a judicial one, but the importance of its role cannot be overstated. In bringing the allegations of torture to the attention of the public, the committee functions as a forum and a lightening rod for the expression of world opinion. One need look no further than the stunning events occurring in Eastern Europe, Soviet Union and elsewhere to find a dramatic

example of how world opinion affects a government's decisions regarding its adherence to the rule of law and recognition of basic human rights. Indeed, one of the real strengths of the treaty is the role to be played by the committee.

The United States has had a long history of support for international efforts against torture, and we played a major role in drafting this treaty. In 1984, Congress passed the Joint Resolution Against Torture (P.L. 98-447), committing the United States to combat the practice of torture. It is important to note' that there is nothing in the proposed convention which conflicts with the United States Constitution or law; in fact several provisions of our law relating to torture or cruel, inhuman or degrading treatment or punishment actually exceed the standards established by the convention.

Turning briefly to the Administration's package, we have a few specific observations. First, the proposed understanding to Article 1 concerning the application of the definition of torture to a victim who is in the "custody or physical control" of the wrongdoer is overbroad. The text of Article 1 itself clearly defines torture as the infliction of the wrongful act "at the instigation of or with the consent or acquiescence of a public official." Furthermore, this broader application is supported by the negotiating history, which indicates that, "It was generally agreed that the definition of acts committed by public officials should be expended to cover acts committed by, or at the instigation of, or with the consent or acquiescence of a public official or any other person acting in an official capacity." 35 U.N. ESCOR para. 18, U.N. Soc. E/CN.4/1347 (1979). There is, therefore, no support either in the text or in the negotiating record for the limiting understanding. We suggest that the meaning of Article 1 will be more clear if the understanding is stricken.

Second, a review of the proposed understanding to Article 3, concerning the applicable standard for refouler, and the negotiating record, suggest the understanding is unnecessary. Article 3 provides that a state shall not expel, return or extradite a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The understanding seeks to make substantially more difficult this test by substituting the meaning, "if it is more likely than not that he would be tortured." First, the subjective "belief" in the text has been removed, reducing the test to a surely objective 51 percent test. Furthermore, the actual text only directs that there be substantial grounds for believing the person "would be in danger" of being tortured whereas the understanding simply applies the percentage test to whether a person would be tortured.

Furthermore, the negotiating record is clear that the purpose of Article 3, not surprisingly, "was to afford the greatest possible protection against torture and that the evidentiary requirement should not be too rigorous and should be kept to a minimum." 35 U.N. ESCOR para. 44, U.N. Doc. E/CN.4/1347 (1979). This understanding, therefore is confusing and should be removed.

Finally, the proposed reservation to Article 16 appears, in fact, to be an understanding. However, in light of a new understanding concerning capitol punishment we understand will be proposed, we simply suggest that the new understanding be substituted for this reservation.

Mr. Chairman, it is ironic that consideration by the committee of the Torture Convention is occurring now-a time when human rights are finally being recognized in nations where freedom was once thought to be only a dream. As a recent commentary in Newsweek observed, "Human rights are not an add-on, a frill, an extra sentence in a realpolitik speech. They are what the fight is about." It is all the more important, then, that the United States add our support to existing international obligations and ratify this treaty. On behalf of the American Bar Association, I urge the committee to approve the Convention Against Torture.

Hon. CLAIBORNE PELL,

LETTER FROM U.S. DEPARTMENT OF STATE

Chairman, Committee on Foreign Relations, U.S. Senate, Washington, DC.

Dear Mr. Chairman: In his message of May 23, 1988, President Reagan transmitted the convention against Torture and other cruel, Inhuman or Degrading Treatment or Punishment to the Senate for its advice and consent to ratification. As you know, the convention was adopted by unanimous agreement of the United Nations General Assembly on December 10, 1984, and entered into force on June 26, 1987. The United States signed it on April 18, 1988. Accompanying the transmittal of the convention to the Senate was the report of the Secretary of State containing a number of proposed reservations, understandings and declarations.