treaty; and (2) it is indefinite in content, in that the U.S. obligation under article 16 will vary as domestic interpretations of the cited Constitutional provisions change. The committee against torture, a body elected by the states parties, should be entrusted with the task of providing reasonable interpretations of article 16 which will bind all the states parties equally.

Reservations such as that proposed also undermine the ability of the U.S. Government to rely upon the treaty to criticize the offensive practices of other states parties, who may seek to shield themselves by justifications based on their own national laws.

It should be noted that the most powerful sanctions of the Convention do not apply to acts of cruel, inhuman or degrading treatment or punishment. For example the Convention does not attach criminal sanctions or mandate the extradition or trial of those persons engaged in cruel, inhuman or degrading treatment or punishment. The Convention obligates states parties only to undertake measures to prevent these other acts of ill-treatment. Preventive measures include the training of law enforcement agents to omit cruel, inhuman and degrading treatment. These obligations are not onerous. The United States should adopt article 16 as written, show its willingness to conform its conduct to international standards and indicate by doing so that it has nothing to' fear from the application of international human rights standards.

g. Articles 21 and 22

Article 21 allows a State Party to recognize the competence of the committee to receive and consider claims that another State Party is not fulfilling its obligations under the treaty. Article 22 allows a State Party to recognize the competence of the committee to receive communications from individuals subject to the State Party's jurisdiction.

The Bush administration recommends accepting the jurisdiction of the committee against Torture to deal with State v. State complaints under article 21. We welcome that action by the administration. The U.S. support for the committee enhances the ability of the committee to develop a uniform standard with universal applicability. It is also to be welcomed that the United States may now be an active participant in the articulation and development of these standards.

Amnesty International USA does regret that a similar declaration was not made with respect to individual communications under article 22. Such a narrow view of the Convention will not afford U.S. citizens the sort of protection from torture which they deserve. As an organization committed to highlighting the cases of individuals, be they Prisoners of Conscience and/or victims of torture, we regard this provision in the Convention as a significant one and encourage all governments to allow this right to their citizens.

h. Proposed Reservation to Article 30

Article 30 provides in 30(1) that in State v. State disputes, where the_parties cannot agree on an arbitrator, either Party may refer the dispute to the International Court of Justice. Article 30(2) allows any state to declare that it does not consider itself bound by article 30(1).

The State Department has proposed that the United States make the reservation that it does not consider itself bound by article 30(1). The State Department supports this reservation because it complies with prior U.S. policy decisions. In October 1985, the United States withdrew its acceptance of the compulsory jurisdiction of the court pursuant to Article 36 of the Statute of the International Court of Justice. Therefore, the decision not to recognize the International Court in this matter is represented as being in the same vein. Rather than making a decision consistent with the 1985 withdrawal, however, the United States is diminishing its recognition of the International Court. The acceptance of the court's compulsory jurisdiction comes under Article 36(2) of the statute of the court, whereas the court's jurisdiction over matters referred to it or provided for in treaties is quite separate and comes under Article 36(1).

The United States has, in the past, shown an interest in bringing cases to the International Court of Justice when the specific treaties call for the Court to have jurisdiction. Such cases have occurred in the context of bilateral treaties where the treaty provides for jurisdiction before the International Court of Justice.29 With the

29 The United States has sought jurisdiction before the International Court of Justice based upon specific treaty provisions several times in the past decade, including Case Concerning

Continued

present proposed reservation by the State Department the United States is withdrawing further from its acceptance of the International Court of Justice. The reservation is a retreat by the United States from the International Court of Justice and the peaceful resolution of disputes in the international community.

We note that the U.S.S.R. has announced it will withdraw its reservation to Article 30. With the significant political changes occurring in Eastern Europe at this time, it is hoped that other states parties making this reservation will also withdraw it. We recommend this course of action to the United States as well.

In conclusion, Amnesty International USA requests the administration to reconsider the reservations and understandings found in the State Department's letter of December 19, 1989, in light of the concerns we have raised in this memorandum and respond positively to any Senate action to address these concerns. We look forward to continued discussions with the Bush administration and to working together toward speedy ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

The CHAIRMAN., Thank you very much, indeed, Mr. Nagan.

We now come to Mr. David Forte, Professor of Law at the Cleveland Marshal College of Law at Cleveland State University.

STATEMENT OF DAVID FORTE, PROFESSOR OF LAW, CLEVELAND MARSHAL COLLEGE OF LAW, CLEVELAND STATE UNIVERSITY, CLEVELAND, OH

Mr. FORTE. Thank you, Mr. Chairman. It is nice to see you again. The CHAIRMAN. Thank you.

Mr. FORTE. I shall submit my full statement for the record and get to the nub of the issue right now.

From the testimony we have received, we are now seeming to come to a consensus that a number of reservations are necessary to make this convention effective, both in terms of U.S. laws and concerning with human rights internationally. The only questions are which ones and how they should be refined.

I have been doing significant research in the "travaux preparatoires"-that's French for "committee hearings"-of the negotiations leading to the treaty. The treaty itself fully expected that there would be reservations.

It is a multilateral treaty. Multilateral treaties, by their nature, cannot cover every type of nuance in every legal system. So, very often, multilateral treaties expect reservations.

Let me give you some examples.

On the definition of "torture," according to the commentary of two of the prime negotiators of the treaty, the representatives of Holland and Sweden, the definition of torture in article 1 was not designed to be a penal definition. I repeat: it was not designed to be a definition that was to be transported, as a whole, into criminal law.

United States Diplomatic and Consular Staff in Teheran, 1980 I.C.J. 3, 4, where the United States asserted jurisdiction based upon provisions in the Treaty of Amity, Economic Relations and Consular Rights of 1955. The International Court of Justice also based jurisdiction upon the Optional Protocols to Vienna Convention of 1961 and 1963 on Diplomatic and Consular Relations. In Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, 1984 I.C.J. 246, 249, jurisdiction was provided by the Special Agreement dated March 29, 1979, between the United States and Canada. On February 6, 1987, the United States filed in the Registry of the International Court of Justice an application instituting proceedings against Italy. The jurisdiction in the case, Elettronica Sicula S.p.A. (United States of America v. Italy), is based upon Article XXVI of the Treaty of Friendship, Commerce and Navigation signed February 2, 1948, between Italy and the United States. International Court of Justice Communique, No. 87/ 2, February 9, 1987.

The negotiators to the convention and the drafters of article 1 said that explicitly.

What article 1 was designed to do was elucidate the notion of torture which had been condemned previously in many other treaties and declarations but had never had any flesh put upon it.

So it is left to the nation states, in their penal legislation or through reservations, whichever is more appropriate, to find a definition of torture that is explicitly focused on what the criminal aspects of that act should be.

Second, on the jurisdiction of the International Court of Justice, it is explicit in the convention that a reservation is permitted. We should note that at any time, once the convention is ratified, we can later on accept the jurisdiction of the International Court of Justice. But once we accept the International Court of Justice jurisdiction and if bad things come from that, the only way we can get out of it under the treaty would be to denounce the treaty altogether, and that would be unfortunate.

Third, Senator Helms mentioned the question as to why the extradition exception was not kept in the latest rendition by the Justice Department and the Department of State.

In fact, a number of states had made a statement on the record that they would like to have article 3 not apply to existing extradition treaty standards. And, in the commentary to the treaty, it was expected. That was the word. It was "expected" that a number of states would opt for such a reservation should they find it necessary.

Why do we need so many reservations?

We need so many reservations because the U.S. Government is a Government of very complex structure: our Federal structure, and our highly developed notions of due process.

Mr. Chairman, we should never forget that, as noble as convention is-and I do hope we ratify it in far less time than 35 years— as noble as this convention is, in my view, the greatest human rights document extant in the world today is the United States Constitution.

Anytime a document that is extrinsic to the legislative process of this country can have effect within the country and be applied by the judiciary without sufficient legislative guidance, there is a danger that our tradition of due process can be undermined.

For example, in one of the reservations, dealing with the definitions of intent, the word "awareness" was used by the State Department, rather than "knowledge." Well, it strikes me that that goes against our normal requirement in criminal law that there must be specific intent before we can punish somebody.

I think "awareness" is too weak a term. I think "knowledge" or "actual knowledge" would be a far better term.

In conclusion, I would like to bring up one final point, and that is the difference between the Reagan submission and the Bush submission regarding articles 20, 21, and 22.

We are under a dilemma in this kind of treaty because there are ten states, among whom are Bulgaria, Mexico, and the Soviet Union, that have accepted the jurisdiction of the committee against torture to receive individual and state party complaints as to their

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torture practices, and also the complaints of others about state party practices in regard to torture.

May I have time to conclude? I should be only a moment.

The CHAIRMAN. Yes.

Mr. FORTE. Many international agencies, such as UNESCO, have, unfortunately, been perverted into political actions against the United States in the past. We want very much for this committee against torture not to turn into that situation.

I would suggest, therefore, that the Senate consider one of two alternatives: first, the Reagan alternative of waiting a few years to make sure that this committee of experts properly fulfills its duty and investigates torture without political bias; or, second, if the committee decides to accept the current administration's view that we should accede to the committee against torture's jurisdiction, we should get binding and reliable assurances from the administration that for political reasons, we will not hesitate to bring up actions of torture against China, we will not hesitate to bring up actions of torture against Mexico or the Soviet Union.

I think if either of those two things are done, then we can safely move into the treaty. But I do not think we should allow ourselves to be hit by charges from foreign governments about torture when we do not have the political will to make the counter arguments against them.

Thank you.

[The prepared statement of Mr. Forte follows:]

PREPARED STATEMENT OF DAVID F. FORTE

Today is a day for hope and caution. The consideration by the United States Senate of the Convention Against Torture can be another major step towards the realization of America's vision of a world order ruled by law, in freedom, and with a concern for the dignity of every human person. Every person in this room who has dedicated his or her mind, energy, prayers, and public service to the cause of freedom and justice for years or decades cannot but be deeply moved by the events of the past two years. We can recall the prophecy of the Sermon on the Mount: "Blessed are they hunger and thirst for justice, for they shall be satisfied."

Like the other victories for human rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can be beneficial only if we take it seriously and we take our participation in it seriously. We should accede to the Convention not because it sounds or looks good, but only if it furthers the American interest in protecting freedom and security both within this country and overseas.

We should remember that, even in its present form, the Convention Against Torture was not obtained easily within the international atmosphere of the United Nations. Administrations from both parties, both the Congress and the Executive, have long known what a hostile diplomatic environment the United Nations has been for the interests of the United States. Ten years ago, the Executive and Congress made the firm decision that to take the United Nations seriously. We decided that the United States would no longer supinely accept insults to this country or to the cause of human rights. It has been a valiant struggle within an institution unready for change because of its institutional structure and rigid agenda. But changes nonetheless were won.

Over a period of eight years under the vigorous leadership of Ambassadors Jeane Kirkpatrick and Vernon Walters, significant progress was made on the issues of Afghanistan, Cambodia, chemical warfare, African famine and economic development, terrorism, and human rights. Ambassador Richard Shifter in particular deserves the gratitude of our country for his work in bringing the Convention Against Torture to reality. I hope the United States does not now lessen its pressure on the United Nations to reform its structure and modify its agenda.

In considering this Convention, we should assure ourselves that it will work for its intended purposes, and not be perverted for political objectives the way some

other international agencies, such as UNESCO, have been. I believe that this Convention can further the cause of human rights, provided certain reservations, understandings, and assurances are present. At a minimum, the revised package of reservations and understandings submitted by the Department of State is absolutely necessary for the success of the Convention Against Torture, although a few, in my opinion, need modification. However, the Senate should also obtain additional assurances that the administration intends to take the Convention in earnest and neither withhold for our own political reasons evidence of torture committed by other states, nor accept the mechanism of the Convention being turned against the United States by states unfriendly to our values.

There are two essential reasons why a group of reservations is necessary to the success of the Convention. First, in bilateral treaties, the two parties are normally aware of the specific institutional and foreign policy needs of each other. Details respecting the particular requirements of each party can be negotiated into the text. Of course, in the American context, the role of the Senate in the approval of treaties allows for an additional voice. But by and large, a wise administration shall take into consideration the opinions of the Senate during the negotiation phase. Reservations are often, therefore, less critical to the success of bilateral treaties. Multilateral treaties, on the other hand, deal with any number of parties, each of which has differing internal political, economic, and legal institutions. It is frequently impossible for a multilateral treaty to contend with and incorporate the range of variations that the respective parties bring to the table. Consequently, most multilateral treaties contemplate the possibility and the expectation of reservations and it is perfectly appropriate for there to be any number of reservations.

The Vienna Convention on Treaties permits reservations to treaties, unless "the reservation is incompatible with the object and purpose of the treaty." (Art. 19 c) The Convention Against Torture contemplates that there will be reservations. Not only are appropriate reservations compatible with the object and purpose of the Convention, they will assist in making the United States participation in the Convention more effective.

Second, as important and noble as the Convention Against Torture may be, we must never lose sight of the fact that the greatest human rights document in the world today is the United States Constitution. Any Convention which modifies the structure of our political process, or which changes our laws without reference to our constitutional values does the cause of human rights no service. The reason why these reservations are important is because the United States takes the rule of law to heart, and the members of the executive, judicial, and legislative branches only serve in their respective positions of power upon taking an oath to preserve, protect and defend the Constitution of the United States.

Although some groups have criticized the administration for putting forwards reservations that seek to maintain American legal standards, this is precisely why these reservations are necessary. The American system of justice, of due process, and of human rights has no peer in the world. When other countries adopt the protections we have for the criminally accused, for the political opposition, and for the religious dissenter, then they may appropriately criticize us. But the United States owes no apology for its Constitution. To bring into harmony the application of the Convention Against Torture with American law does both a service. When Prime Minister Nehru was questioned shortly after Indian independence why he chose to stay in the British Commonwealth, he replied that the Commonwealth was not independence with something less. Rather membership in the Commonwealth constituted independence with something more. Similarly, reservations that maintain the coherence of the American constitutional order will give us the benefits of the Convention Against Torture with something more, much more.

In particular, it is vital that the United States declare that the Convention be not self-executing, that the definition of inhuman punishment under Article 16 comport with the Eighth Amendment to the United States Constitution, and that the United States not agree to the compulsory jurisdiction of the International Court of Justice at this time.

There is, in addition, one omission in the latest package put forward by the Department of State that deserves special comment. În 1988, the administration had decided not to recognize the competency of the Committee Against Torture under Articles 20, 21, and 22. The current position of the State Department is that the United States should adhere to those articles. In 1988, the administration wished to defer recognition of the competency of the Committee Against Torture until we had some time to assess the manner in which it carried out its work. It was a prudent caution. There are many international organizations and entities supposedly dedicated to the cause of human betterment that have been undermined by corruption