extended. In that conviction the World Jewish Congress of which the American Jewish Congress is a constituent part has prepared and transmitted a series of submissions to the various preparatory bodies set up by the United Nations to consider the Genocide Convention, the Declaration of Human Rights, and the Covenant of Human Rights. In the interest of the United States as well as others, the American Jewish Congress opposes all attempts to disable our country from effective participation in international efforts to insure that what has been the heritage of only a few nations will become a standard of conduct for all. It is our contention that the present impetus for an amendment limiting the exercise of the treaty power arises to a large extent out of grave misconceptions as to existing constitutional limitations on that power; an entirely unmerited lack of confidence in the Senate and President of the United States and existing constitutional procedures governing the exercise of that power; and a misunderstanding as to the provisions of recent international proposals to safeguard human rights. Before analyzing the individual sections of Senate Joint Resolution No. 1 in detail we should like to take up these misconceptions as we understand them.

The first is that the treaty power is not limited in any way by the Constitution and that by use of this power the President and Senate could cripple or destroy the United States, undermine its basic constitutional structure, and abridge essential liberties of the Bill of Rights. This is not the case. Although the Supreme Court has never held a treaty to be unconstitutional, this has not been because the treaty power is above the Constitution but solely because no treaty or other international agreement to which the United States has been a party has abridged rights guaranteed by the Constitution to individuals. The courts have repeatedly emphasized that a treaty may not offend specific prohibitions of the Constitution, the classic statement being that in the case of Geofroy v. Riggs (133 U. S. 258, 267 (1890)).

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and these arising from the nature of the Government itself and that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541). * * *" [Emphasis supplied.]

In the case of Missouri v. Holland (252 U. S. 416, 433 (1920)) the Supreme Court, although ruling that a treaty and legislation pursuant thereto overrides State laws, was careful to point out that treaties could not contravene specific prohibiions of the Constitution. The Court in that case stated "We do not mean to imply that there are no qualifications to the treaty-making power

The treaty in question does not contravene any prohibitory words to be found in the Constitution" (see also U. S. v. Minnesota, 270 U. S. 181, 208 (1926); Asakura v. City of Seattle, 265 U. S. 332, 341 (1924); The Cherokee Tobacco, 11 Wall, 616. 620-21 (1870)).

In the light of these Supreme Court pronouncements the fact that article VI of the Constitution declares laws made "in pursuance" of the Constitution and treaties made "under the authority of the United States" to be the supreme law of the land, does not imply that treaties are above the Constiuion. The difference in phraseology resulted solely from the fact that the framers wanted the supremacy clause to apply not only to treaties made in the future under the Constitution but also to treaties which had already been made under the Articles of Confederation. Certainly no implication can be drawn from this that treaties are not subject to constitutional limitations.

Another argument advanced in support of the proposition that treaties can abridge our basic liberties without constitutional recourse is based on the fact that the first amendment, unlike the rest of the Bill of Rights, refers only to Congress: "Congress shall make no law respecting an establishment of religion,

•." However, the courts have assumed that the amendment applies to actions by all branches of the Federal Government impairing freedom of speech, press, or religion or the rights of assembly or petition. (See e. g.; Watson v. Jones, 13 Wall. 679.) Specifically the amendment has been thought to limit the actions of the President (Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 135– 136, 143, 199–200 (1951); Bailey v. Richardson, 182 F. 2d, 46, 59–60, 71–74, (D. C. Cir. 1950)). Treaties being the result of Presidential action in conjune

tion with the Senate, it cannot be claimed that first amendment freedoms can be invaded by treaty with constitutional impunity.

Thus it can readily be seen that the Constitution already provides ample safeguards against abridgement by treaty or executive agreement of essential liberties guaranteed to the individual by the Bill of Rights. A constitutional amendment to this effect is unnecessary and redundant.

The Senate and the President, and later the Congress as a whole, each has an opportunity to reject, modify, or nullify an international agreement insofar as it affects internal law. Initially the President and the State Department can refuse to sign a treaty or insert modifications in a proposed treaty which is found in some measure repugnant to American ideals or interests. An example of this ability to effect modifications in proposed international agreements is found in the proposal submitted by the United States to the United Nations Commission on Human Rights which would insure that the constitutional balance between Federal and State powers under our Constitution could not be altered by the proposed Covenants on Human Rights (Proposed art. 48, Draft Covenant on Civil and Political Rights, proposed art. 26, Draft Covenant on Economic, Social, and Cultural Rights).

Should the President sign a treaty, the Senate is free to refuse ratification. Indeed, a minority of the Senate-one-third of a quorum plus one can block American entry into any treaty arrangement. Moreover, if it so desired, the Senate is free to ratify with any reservations it considers important. For example, the Senate Foreign Relations Subcommittee on Genocide recommended to the full committee that the Genocide Convention be ratified with four "understandings." Among these understandings was one which was designed, according to the late Senator McMahon, chairman of the committee, to overcome fears that lynchings might be classified as genocidal acts (New York Times, April 13, 1950; Legislative History of Senate Committee on Foreign Relations, 81st Cong., Doc. No. 247, at 27-29 (1950)).

Even if a bad treaty is signed or ratified, a majority of both Houses can pass an act ending its internal effect. This results from the doctrine that treaties, with respect to their internal effect, are generally of the same dignity as statutes. Their domestic implications and consequences can be modified or repealed by a subsequent Federal act (Head Money Cases, 112 U. S. 580, 597-599 (1884); The Cherokee Tobacocco, 11 Wall. 616; Chae Chan Ping v. United States, 130 U. S. 581. 600 (1889); see United States v. Minnesota, 270 U. S. 181, 208 (1926)). The case of Hijo v. United States (194 U. S. 315, 324 (1904)) states "*** it is well settled that in the case of a conflict between an act of Congress and a treaty *** the last one in date must prevail. ***"

Clearly the opportunity for rejection and modification of treaties granted each arm of the Government at each of the stages enumerated above provides ample safeguards against hasty and unthinking international commitments.

A third serious misconception relates to the actual content and substance of the proposed international agreements protecting human rights and interdicting crimes against humanity. It has been claimed that by entering into such an agreement as the Covenants on Human Rights the United States would be surrendering its own rights and reducing its own standards to conform to those of nations enjoying a bare minimum of liberty and individual freedom.

The Draft Covenants on Human Rights expressly provide, however, that the covenants shall not cause any lowering of existing standards in countries whose standards are higher than those proposed in the covenant. For example article 4 of the proposed Covenant on Civil and Political Rights reads:

"2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any contracting state pursuant to law, conventions, regulations, or custom on the pretext that the present covenant does not recognize such rights or that it recognizes them to a lesser extent."

Almost identical language is contained in article 5 of the proposed Covenant on Economic, Social, and Cultural Rights.

Another objection sometimes raised to the Covenants on Human Rights is that they will enable the Federal Government to encroach on areas traditionally reserved to State control. These fears should be allayed by the proposed Federal amendment to that covenant referred to above.

The dangers of Senate Joint Resolution 1 to the welfare of this Nation will, we believe, be manifest upon an examination and analysis of the individual paragraphs of the proposed amendment.

SECTION 1

Section 1 of Senate Joint Resolution 1 provides: "A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect."

Section 1 nullifies the effect of any treaty provision which denies or abridges any right enumerated in the Constitution. This section represents a substantial improvement over the phrasing of section 1 of the resolution introduced at the last session of Congres, Senate Joint Resolution 130, in that it omits the phrase in the prior resolution which would have prohibited treaties which merely touched upon constitutional rights without in any way abridging or infringing upon them. However, the phrase "rights enumerated in this Constitution" is ambiguous and subject to varying interpretations.

For example, if the term "rights enumerated in this Constitution" is contrasted with the term contained in the next paragraph, "rights of citizens of the United States within the United States enumerated in this Constitution" it would appear that a different set of rights is referred to in each section. Except perhaps for the right of a citizen of the United States to demand protecion from the Federal Government on the high seas or abroad (Slaughter House Cases, 16 Wall 56, 79 (1872)) the individual rights guaranteed by the United States Constitution do not apply to American citizens in countries other than the United States (In re Ro88, 140 U. S. 453, 464 (1890); Neely v. Henkel, 180 U. S. 109, 122–123 (1901)). That being the case, it may well be argued that the broad term "rights enumerated in this Constitution," since it omits the qualifying phrase contained in section 2 of the resolution limiting the rights to those enjoyed wihin the United States by citizens of the United States, is in fact intended to prohibit treaties dealing with the subject matter of the enumerated rights even in situations to which the constitutional guaranties would not actually apply. In any event such ambiguity should not be tolerated in a constitutional amendment.

Similarly, it might be argued that the term "rights enumerated" encompasses the right of the States not to have their reserved powers invaded by the Federal Government. Under such an interpretation, many of the most common types of treaties would be invalid, since their subject matter does not come within the delegated powers of Congress. For example, treaties relating to the rights of aliens to engage in trade or business, as applied to businesses having no interstate character (Asakura v. Seattle, 265 U. S. 332 (1924)) would be barred, as well as treaties of extradition involving purely domestic crimes (Charlton v. Kelly, 229 U. S. 447 (1913)).

Assuming, however, that these ambiguities of section 1 are clarified so that section 1 only prohibits treaties or agreements which abridge or infringe basic individual rights such as those guaranteed by the Bill of Rights and the 14th amendment, the wisdom of this section is still open to question. While such a restatement of currently established constitutional doctrine would probably be harmless, it may give rise to an argument at some future time that a change in basic principle must have been intended since the complex machinery of adopting an amendment would not ordinarily be utilized merely to restate existing law.

SECTION 2

Section 2 of Senate Joint Resolution 1 provides: "No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially wihin the domestic jurisdiction of the United States."

Initially this section is open to the objection that the phraseology is ambiguous and many of the words used have no clearly defined legal meaning. For example, does the phrase "rights of citizens of the United States within the United States enumerated in this Constitution" merely describe the type of rights which cannot be supervised. In that event, where rights are enjoyed by aliens within the United States, as is the case with most constitutional safeguards, a treaty could not vest power in international bodies to deal with the rights of aliens. On the other hand, if the key word is "citizens," the prohibitions of section 2 apply only to citizens.

Secondly, the meaning of the term "supervision" is uncertain, and existing case law provides little guidance to its meaning in this context. It would seem that section 2 by using this word along with the term "control" contemplates a prohibition on international bodies whose powers are even less than "control" or “adjudication." What degree of power less than “control," however, is not

clear. Does the word "supervise" encompass such action as mere inspection without the power to effect changes? Does the pharse "supervise, control or adjudicate" cover such processes as fact-finding, mediation and conciliation?

The very presence of these ambiguities in the language of the proposed amendment, even though they are eventually resolved by the Supreme Court, will inevitably produce a period of uncertainty during which the necessary decisions and precedents will be evolving. Throughout this period other nations will hesitate to enter into binding commitments with us and the conduct of our foreign affairs will thus be seriously hampered.

Since the American Jewish Congress is committed to the principle that the rights of Americans can be safeguarded and extended only in an atmosphere of universal respect for the dignity and rights of all men and that international cooperation is vitally necessary to assure such universal respect and sensitivity to human rights, we are particularly interested in the effect of Senate Joint Resolution 1 on such efforts at international cooperation as the Covenants on Human Rights and the Genocide Convention.

It is our conclusion that the proposed constitutional amendment might seriously limit, if not preclude, the United States from participating in either of these agreements as well as in many of the day-to-day activities of the United Nations designed to elevate standards of conduct in the area of civil and political rights. For example, the proposed Draft Covenant on Civil and Political Rights contains an implementing provision which would authorize an international Human Rights Committee set up thereunder to ascertain facts, report its conclusions, and make available its good offices in instances where a nation is charged with failure to give effect to the provisions of the Covenant (art. 44, Draft Covenant on Civil and Political Rights). Since the covenant deals with civil and political rights which may be considered "essentially domestic in nature" as well as "rights of citizens *** enumerated in this Constitution," and since the powers of factfinding and conciliation exercised by the Human Rights Committee may well be interpreted as "supervision, control, or adjudication" within the meaning of section 2 of Senate Joint Resolution 1, it can readily be seen that United States participation in attempts to settle problems involving violations of human rights by cooperative and peaceful means might well be prohibited.

Similarly the proposed restrictions of section 2 might inhibit the ability of the United States to participate in such investigations as the current joint United Nations International Labor Organization investigation of forced labor in countries beyond the Iron Curtain and in certain areas of Africa. The Special Committee on Forced Labor, in addition to obtaining facts by questionnaires directed to the various participating countries, also appoints consultants to collect evidence within nations charged with harboring forced labor. See New York Herald Tribune, July 2, 1952. Section 2 would also disable us from participation in the United Nations inquiry into the disgraceful policy of apartheid which is currently creating wide unrest in South Africa.

Clearly the United States will not long be permitted to participate, and in fairness can claim no right to participate, in joint investigations and fact finding with respect to conditions in other countries unless it is willing to permit inquiry and perhaps supervision of conditions existing within its own territorial borders. Can we say that the doctrine of equality before the law which we proudly affirm with respect to the relations between our citizens and their Government is completely inapplicable to the relations between that Government and other governments and to the law of nations? Can we retain our moral leadership of the free world if we claim special privileges and special immunities from investigation or censure by the other nations of the world?

The American Jewish Congress advocates the ratification of the Genocide Convention. We do so not only because we view the convention as a means to deter genocide, of which the Jewish people have been most frequently the victims, but also because the convention represents another step toward achieving a world order based on rule of law rather than arbitrary force.

Section 2 of the proposed constitutional amendment, although it might not prevent the United States from ratifying the Genocide Convention in its present form, could well interfere with future attempts effectively to punish perpetrators of this horrible crime. Article VI of the Genocide Convention provides that persons charged with genocide shall be tried by a competent tribunal of the state in which the act was committed or by an international penal tribunal only "with respect to those contracting parties which shall have accepted its jurisdiction." Although the first draft of a statute for an International Criminal Court has been

prepared by a committee of the United Nations it is still in the formative stage, the United States has not accepted its jurisdiction, and of course ratification of the Genocide Convention in no way commits the ratifying state to participate in such an international criminal tribunal if it is set up.

The American Jewish Congress does not now urge that the United States accept the jurisdiction of the proposed International Criminal Court as it is presently envisaged. Nor do we advocate that power be vested in any international tribunal to adjudicate rights of Americans or other persons unless such tribunal complies with the fundamental principles of due process of law. However, we do believe that there may well come a time when an international penal tribunal, operating with proper safeguards, may become important in effectively policing other international crimes, such as violation of international atomic controls inimical to world security. The advantages of such an international tribunal even at the present time cannot be overlooked. One of its salutary features would be that an American journalist such as Oatis in Prague, could, if charged with fomenting civil strife in Czechoslovakia, be tried by an international tribunal and not by the prejudiced and subservient courts of Czechoslovakia.

Section 2, however, would prevent the adjudication of American rights by such an international tribunal even if it conducted its proceedings with all the judicial safeguards now available in the courts of the United States governed by the Constitution. It is our view that the sponsors of section 2 are unwise in attempting to tie the hands of our treatymakers by disabling them from future participation in such international courts.

Amending the Constitution in the terms set forth in section 2 of Senate Joint Resolution 1 would seriously diminish the chances for effective international control of atomic power. It would disable the United States from permitting international "supervision" or "control" of atomic energy production in plants located within this country, since such production might well constitute a matter involving essentially domestic rights of citizens of the Unilted States. Without the consent of the United States to such supervision of plants within its borders, it is highly unlikely that other nations would agree to international control and supervision of their atomic production. Similarly, section 2 might prevent effective international control of opium and other narcotics. In addition it might limit the possibility of joint solutions to such vital military matters as pooling of productive resources, rights in military bases, and prisoners of war.

SECTION 3

Section 3 of Senate Joint Resolution 1 provides: "A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.”

Under this section in order for the provisions of a treaty to take effect as internal law, they would have to be approved by the President, ratified by a two-thirds vote of the Senate, and then subsequently approved by a majority vote of the Senate and the House.

This requirement would seriously hamper our day-to-day, noncontroversial relationships with other nations by delaying the operation of treaties already approved by two-thirds of the Senate until congressional enactment is secured. Among the types of treaties which have traditionally been self-executing are those providing for the reciprocal rights of aliens to hold, acquire, inherit and dispose of property, to engage in businesses, to be protected in their persons and property, and to be free from burdensome taxation. In many instances these treaties would lose their effectiveness if their operation were suspended even temporarily. In any event the fact that during the intervening period, private citizens as well as State governments could freely flout international commitments will not only create confusion but will make other nations reluctant to enter such reciprocal treaties with us, thereby jeopardizing rights and privileges of Americans abroad.

There is no perceptible advantage to be gained from superimposing a requirement of congressional enactment upon the existing constitutional provision that a treaty must be ratified by two-thirds of the Senate before taking effect. (art. II, sec. 2). Treaties, in any event, are self-executing only under certain conditions (Ware v. Hylton, 3 Dall, 199 (1796)). They may moreover, be made nonself-executing by their express terms (Foster & Elam v. Neilson, 2 Pet. 253 (1829) ; U. 8. v. Percheman, 7 Pet. 51 (1833)). For example, the Genocide Convention was phrased so that it would be non-self-executing, and present drafts of proposed conventions relating to human rights are cast in non-self-executing