The United States, therefore, in attempting to negotiate a treaty was stricken with the fact of these other countries' unwillingness to adopt fixed and rigid guaranties, and so a clause was put in allowing countries to modify rights. The point that Mr. Smithey makes, and I think that Senator Bricker makes, is that provision for the benefit of other countries may in some way operate to allow the United States Government to suspend constitutional guaranties. There are two answers to that. First, there is a derogation clause itself which reads, as I quote from paragraph 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. In other words, the mere fact that this draft covenant does not embody all the rights of American citizens, or does not recognize them to the same extent that we do, does not entitled the United States to modify its rights. What we are doing is trying to raise the standards of other countries; we are not trying to modify our own. The second answer is the answer I have given before. No treaty can in any way conflict with an enumerated right in the Constitution, if I read the Supreme Court cases correctly. Mr. SMITHEY. Let me ask you this further question, Mr. Maslow Mr. MASLOW. May I just take one second. Perhaps it might be of use to have introduced in the record this bulletin of the State Department with all of the texts of the provisions in it, together with the commentary. Senator DIRKSEN. Does that appear in the earlier hearings? Mr. SMITHEY. This is a later draft of the covenant, is that not right? Mr. MASLOW. I think so. This is July 7, 1952. Mr. SMITHEY. The one appearing in the record on Senate Joint Resolution 130 was dated 1951. Mr. MASLOW. If it is of use to you and the gentlemen of the committee, I would be glad to introduce it. Senator DIRKSEN. Suppose you submit it. Secretary Dulles is either going to submit a statement or is going to appear, and it is entirely possible that he may submit some fortifying documents along with his statement. If, however, he does not include it in his statement, I think properly it might be included in the record. Mr. MASLOW. I think perhaps I ought to identify it. It is a reprint from the Department of State Bulletin of July 7, 1952 and it is entitled "Progress Toward Completion Completion of Human Rights Covenants." (The material referred to is as follows:) PROGRESS TOWARD COMPLETION OF HUMAN RIGHTS COVENANTS Two COVENANTS ON HUMAN RIGHTS BEING DRAFTED: DRAFTS RELATING TO CIVIL AND POLITICAL RIGHTS AND TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS REVISED AT 1952 SESSION OF U. N. COMMISSION ON HUMAN RIGHTS By James Simsarian The U. N. Commission on Human Rights reviewed sections of the two draft Covenants on Human Rights at its 9-week session at New York from April 14 to June 13, 1952. The Commission decided to ask the Economic and Social Council to instruct the Commission to complete its work on the two draft Covenants at its next session in 1953, prior to the consideration of the two drafts by the Council and the General Assembly. The Commission divided the previous draft of a Covenant on Human Rights into two Covenants at the request of the General Assembly-one Covenant on Civil and Political Rights and the other Covenant on Economic, Social, and Cultural Rights. The Commission rejected a proposal submitted by the Union of Soviet Socialist Republics to combine the two documents into a single Covenant. The two Covenants are being drafted in the forms of treaties, to be opened for ratification or accession by Governments after they are finally drafted by the Commission on Human Rights and approved by the General Assembly. Each Covenant will come into force when it is ratified by 20 countries and will apply only to countries which ratify it. The Covenants are in contrast to the Universal Declaration of Human Rights (approved by the General Assembly on December 10, 1948), which was drafted not in the form of a treaty but as a declaration without legally binding force. As Mrs. Franklin D. Roosevelt, the U. S. representative on the Commission on Human Rights, pointed out at the close of the 1952 session of the Commission: ' "The drafting of the Universal Declaration of Human Rights and of the Covenants on Human Rights are part of an international effort designed to acquaint the world with the ideas of freedom and of the vital necessity for their preservation and extension. Such an effort is indispensable in this day when totalitarian concepts are being spread vigorously not only by Communists by also by the remnants of nazism and fascism, The U. N. campaign for the promotion of human rights must be continued and prosecuted successfully if our free way of life is to be preserved." Mrs. Roosevelt stressed the point that: "Neither of the Covenants as now drafted contains any provisions which depart from the American way of life in the direction of communism, socialism, syndicalism or statism. When such provisions have been proposed, the United States has opposed them; every proposal by the Soviet Union and its satellites to write statism into the Covenant has been defeated. . . . In its approach to the economic and social articles, as well as the civil and political articles, the U. S. delegation has been guided by our Constitution and by existing statutes and policies approved by the legislative and executive branches of the Federal Government." COVENANT ON CIVIL AND POLITICAL RIGHTS The Commission on Human Rights retained in the Covenant on Civil and Political Rights the basic civil and political rights which have been included in the draft Covenant since it was first considered by the Commission in 1947. They have been reviewed and revised by the Commission and its Drafting Committee in 1947, 1948, 1949, and 1950, as well as at its session in New York this year. These basic civil and political rights are well known in American tradition and law. They include the right to life, protection against torture, slavery, forced labor, arbitrary arrest or detention, freedom to leave a country, freedom to return to one's country, right to a fair and public hearing by an independent and impartial tribunal, right to be presumed innocent until proved guilty, protection against er post facto laws, freedom of religion, expression, assembly and association, and equality before the law.' UNION OF SOVIET SOCIALIST REPUBLICS As at previous sessions of the Commission, the Union of Soviet Socialist Re publies sought to weaken the provisions of the Covenant but these efforts were rejected by the Commission. For example, in the consideration of the article on freedom of expression,' the U. S. S. R. proposed that this freedom be limited "in the interests of democracy." The U. S. S. R. has repeatedly sought to distort the term “democracy” by claiming that it is descriptive of the Communist State. In line with its usual practice, the U. S. S. R. was obviously seeking by its amendment to insert language so that it could later claim that this freedom did not go beyond the limited scope of the Soviet Constitution which allows the right of expression only to those supporting the Communist State. This effort 1 Bulletin of June 30, 1952. p. 1024. Articles 5 to 19 of Covenant on Civil and Political Rights. * Article 16 of Covenant on Civil and Political Rights. of the U. S. S. R. to negate the provision on freedom of expression in the Covenant was rejected, with only three members voting for it, the U. S. S. R. and its two statellites, the Ukraine and Poland. The U. S. S. R. submitted a similar amendment in an effort to limit the provisions of the Covenant on freedom of assembly and association, but this amendment was also rejected, with the same three being the only members of the Commission voting for the amendment. In the case of the article of the Covenant' calling for a fair and public hearing by an independent and impartial tribunal, the U. S. S. R. proposed the elimination of the term "impartial" by an amendment it submitted to the Commission. The Commission, however, rejected this amendment. COMPLAINT AND REPORTING PROCEDURES The Commission had only sufficient time at its 1952 session to review the substantive articles relating to civil and political rights and economic, social, and cultural rights. The Commission accordingly did not review the complaint machinery drafted at previous sessions with respect to the consideration of alleged violations of the articles on civil and political rights. The draft Covenant has thus far provided only for the filing of complaints by countries ratifying the Covenant. Such complaints may be filed only against countries which have ratified the Covenant. The Commission has rejected proposals submitted by some members of the Commission to authorize individuals, groups, or nongovernmental organizations to file complaints. These issues will no doubt be considered again by the Commission at its session next year. The Commission will also no doubt consider at that time the reporting procedure proposed for the Covenant on Economic, Social, and Cultural Rights.* COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS The draft Covenant on Economic, Social, and Cultural Rights sets forth provisions relating to employment, conditions of work, trade-unions, social security, motherhood, maternity, children, young persons, the family, food, clothing, housing, standard of living, health, education, science, and culture.' DIFFERENCES BETWEEN TWO COVENANTS In drafting the Covenant on Economic, Social, and Cultural Rights, the Commission recognized that the provisions of this Covenant differed in a number of respects from the Covenant on Civil and Political Rights. These differences were set forth in the Covenant on Economic, Social, and Cultural Rights in a number of ways: (1) The economic, social, and cultural rights were recognized as objectives to be achieved "progressively." In the case of the civil and political rights, countries ratifying the Covenant will be under an obligation to take necessary steps to give effect to these rights. A much longer period of time is clearly contemplated under the Covenant on Economic, Social, and Cultural Rights for the achievement of the objectives of this Covenant. The term "rights" is used in both the civil and political articles and the economic, social, and cultural articles. This term is used, however, in two different senses. The civil and political rights are looked upon as "rights" to be given effect immediately. The economic social, and cultural rights, although recognized as "rights," are looked upon as goals toward which countries ratifying the Covenant would undertake to strive and to achieve these objectives to the extent permitted by available resources. (2) It was recognized that economic, social, and cultural rights were to be achieved by many means and methods, private as well as public, and not solely through legislation. Article 2 of the Covenant on Economic, Social, and Cultural Rights expressly states that the rights recognized in that Covenant are to be achieved "by other means" as well as by legislation. The members of the Commission acknowledged that the reference to "other means" was a recognition by them that the rights set forth in this Covenant could be achieved through private as well as governmental action. The obligation of a country ratifying this Cove Article 12. par. 1. of Covenant on Civil and Political Rights. Articles 17 to 26 of Covenant on Economic, Social, and Cultural Rights. Article 2, par. 1, of Covenant on Economic, Social, and Cultural Rights. nant will be to take steps to promote conditions for economic, social, and cultural progress and development. The U. S. S. R. repeatedly urged this year, in the same manner that it urged last year in the Commission, that economic, social, and cultural rights be stated in terms of state legislation only, but other members of the Commission rejected this approach. (3) The economic, social, and cultural rights were necessarily drafted in general terms as contrasted to the articles on civil and political rights. It was felt by the Commission that since the economic, social, and cultural rights were stated in terms of broad objectives, general language would be adequate. COVENANTS ARE NON-SELF-EXECUTING There is appropriate language in both Covenants to assure that they are nonself-executing. Article 2 of the draft Covenant on Civil and Political Rights provides that where the rights recognized in the Covenant have not already been "provided for by existing legislative or other measures, each [Contracting] State undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of this Covenant, to adopt such legislative or other measures as may be necesary to give effect to the rights recognized in this Covenant". This article makes it clear that the provisions of the Covenant would not, themselves, be enforceable in the courts as "the supreme Law of the Land" under article VI of the U. S. Constitution. The United States, however, when it becomes a party to the Covenant, would, together with other contracting countries, have a firm obligation to enact the necessary legislative or other measures to give effect to the rights set forth in the Covenant to the extent such measures have not already been enacted. Such legislative or other measures which are enacted would, of course, be enforceable in the courts of the United States. Article 2 of the draft Covenant on Economic, Social, and Cultural Rights similarly ensures the non-self-executing character of its provisions. Under this Covenant, each contracting country undertakes to take steps "with a view to achieving progressively the full realization of the rights recognized in this Covenant by legislative as well as by other means." There is a recognition by this phraseology of the need for affirmative action for the achievement of the rights set forth in this Covenant. The provisions of this Covenant would not. themselves, be enforceable in the courts as "the supreme Law of the Land" under article VI of the United States Constitution. COVENANTS NOT TO LOWER EXISTING STANDARDS Provision is included in each of the Covenants to make it expressly clear that "there shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any Contracting State pursuant to the law [of that State] . . . on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent"." The Commission included this provision in the Covenants to stress the point that under no circumstances should either Covenant be utilized as a pretext for any decrease in the higher standards existing in some countries (such as the United States) with respect to fundamental human rights accorded to persons in these countries because of more advanced Constitutional safeguards or for any other reason. At the same time, the Commission changed the word "shall" to "may" in the provisions on exceptions in the articles on freedom of religion, expression, assembly, and association" to make it entirely clear that the exceptions to these rights are permissive only and not in any sense mandatory. In no instance is any country called upon to apply these permissive restrictions. With the inclusion of these provisions and changes, the members of the Commission sought to avoid the possibility of the Covenant lowering any existing higher standards of freedom in any country. They stressed the fact that the objective of the two Covenants is to raise standards in countries not so advanced as other countries with respect to human rights and freedoms. 10 Article 4. par. 2. of Covenant on Civil and Political Rights; see also article 5, par. 2, of Covenant on Economic, Social, and Cultural Rights. "Articles 15, 16, 17, and 18 of Covenant on Civil and Political Rights. FEDERAL-STATE ARTICLE The Commission did not have sufficient time to consider the inclusion of a Federal-State article in the two Covenants. The U. S. delegation, together with the delegations of Australia and India, however, submitted a new draft of a Federal-State article to the Commission; it will doubtless be considered at its 1953 session. The U. S. delegation has insisted on the inclusion of such an article in the Covenants since the earliest U. N. consideration of the Covenant in 1947. The Federal-State article would ensure that the constitutional balance between the powers delegated by the Federal Constitution to our Federal Government, on the one hand, and the powers reserved to the States, on the other, would not be altered by the proposed Covenants on Human Rights. Under the proposed Federal-State article, the United States, upon its ratification of a Covenant, would undertake the same obligations as other ratifying countries with respect to rights set forth in that Covenant which fall within the constitutional jurisdiction of the Federal Government. With respect to provisions which are wholly or in part within the jurisdiction of the several states, the only obligation of the United States would be to bring these provisions to the notice of the appropriate authorities of the individual states with a favorable recommendation and a request for information as to the law of the states in relation to these provisions of the Covenant. The United States would transmit this information to the United Nations. The Federal-State article as now proposed expressly provides that the Covenant "shall not operate so as to bring within the jurisdiction of the Federal authority of a Federal State . . . any of the matters referred to in this Covenant which independently of the Covenant, would not be within the jurisdiction of the Federal authority." The Federal-State division of powers in the United States would be preserved by this provision; the national power would not be increased. The proposal for a Federal-State article makes it clear that the obligations undertaken by the United States under the Covenant would be limited to matters which under the Constitution of the United States are within the Federal jurisdiction independent of the coming into force of the Covenant itself. SELF-DETERMINATION The Commission approved three paragraphs of an article on self-determination for inclusion in both Covenants. The first two paragraphs were along the lines of language adopted at the sixth session of the General Assembly on February 5, 1952. The third paragraph was added by the Commission. The United States Delegation voted for the first two paragraphs but opposed the third paragraph. In voting for the first two paragraphs, the United States delegation explained that if, however, reserved its position to propose changes in these paragraphs in the future. The first paragraph recognizes that "All peoples and all nations shall have the right of self-determination, namely, the right freely to determine their political, economic, social and cultural status." The second paragraph calls on all countries to promote the realization of the right of self-determination in all their territories and to respect the maintenance of that right in other countries in conformity with the provisions of the United Nations Charter. The third paragraph, which the U. S. delegation opposed, provides that "the right of the peoples to self-determination shall also include permanent sovereignty over their natural wealth and resources. In no case may a people be deprived of its own means of subsistence on the grounds of any rights that may be claimed by other States." DRAFT COVENANT ON CIVIL AND POLITICAL. RIGHTS (Preamble and first 19 articles were revised by the Commission on Human Rights at its April-June 1952 session) The States Parties hereto, Preamble CONSIDERING, that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world, RECOGNIZING that these rights are derived from the inherent dignity of the human person, |