In referring to Article 14 of the Declaration of Human Rights Mr. Holman says that this provision, incorporated in a treaty, could mean "that in times of revolution in Cuba or Mexico or India or elsewhere thousands of aliens might legally claim a right of asylum here."" Such a conclusion seems rather wide of the mark. The provisions of the Declaration do not constitute legal obligations of states; they are "common standards of achievement" toward which it is hoped all nations will progress. Further, there is no provision for a "right to asylum" in the draft Covenant on Human Rights, which will be a legally binding document when completed and accepted by states. All suggestions for the inclusion of such a provision have been quickly dismissed. The narrow provisions in the draft Covenant which in part parallel Article 14 of the Declaration are as follows: "Article 8 "1. Subject to any general law, consistent with the rights recognized in this covenant: "(a) Everyone legally within the territory of a state shall, within that territory, have the right to (i) liberty of movement and (ii) freedom to choose his residence; "(b) Everyone shall be free to leave any country including his own. "2. (a) No one shall be subjected to arbitrary exile; "(b) Subject to the preceding subparagraph, anyone shall be free to enter the country of which he is a national." "Article 9 "No alien legally admitted to the territory of a state shall be expelied therefrom except on established legal grounds and according to procedure and safeguards which shall in all cases be provided by law."" This draft Covenant contains a "non-self-executing" clause." In fact any treaty containing even such limited provisions would necessarily have to contain a clause of non-self-execution (i. e., provisions of the treaty can become domestic law only when they are included in an enabling act of Congress) before the Senate would be at all likely to ratify it. Furthermore, the Senate, when giving its advice and consent, can declare by reservation that provisions in a treaty shall be non-self-executing even if no such explicit provision is made in the treaty itself. A provision in the draft Covenant on Human Rights relating to freedom of speech and press has been pictured as an incursion into American liberties under the Constitution and it has been stated that such rights would thus become subject to "grave limitations and even suspensions". Mr. Holman cites paragraph 3 of article 14 of the draft covenant whereunder the right to freedom of speech and the press may be subjected to limitations as are provided by law and are necessary for the protection of national security, public order, safety, health, or morals, etc. From this he concludes that "any administration in power con'd provide by law (contrary to the first provision of the Bill of Rights) such restriction or abridgment of freedom of speech or of press as it asserted necessary Such an analysis seems to ignore several vital factors in the situation. First. the limitations which are contained in the draft covenant are permissive and not mandatory; the provisions for free speech and press represent a minimum and not a maximum of rights to be guaranteed by the contracting parties. Furthermore, it is necessary to read this article of the covenant in conjunction with two other articles. Article 1 (2) says that the covenant is to be non-self-executing, and Article 18 (2) says that nothing in the covenant can be "interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed under the laws of any contracting state." All of this, plus the necessity of senatorial advice and consent, would seem to deprive the pictured fears of any substance. The Covenant on Human Rights, if and when it is completed, and if and when it is ratified by the United States, will bring about no i m tations on freedom of speech and press in this country. The object of the covenant 19 Loc. cit, note 4, supra, p. A 2932. See note 8 supra # Arti le I (2) of the proposed covenant states that the obligation of the parties under the covenant is to take such steps as necessary, legislative or otherwise, to give effect to the provisions of the covenant, where such provisions are not already provided for by existing legislation or other measures. # Loc. cit., note 4, supra, p. A 2934. is to guarantee certain minimum rights for all people everywhere. In regard to any particular right, in countries where such a right is already fully guaranteed by law or by constitutional provision, the provisions in the covenant cannot have the effect of weakening such right. Having painted “a broad picture of what is going on in the international field", Mr. Holman proceeds to ask and answer five questions on constitutional law. The first four of these show how a treaty can nullify, respectively, provisions of a State constitution, a State statute, the decision of a State supreme court, and existing Federal legislation on the same subject. The first three (i. e., supersession of State constitutions, laws, and court decisions) are, I believe, indispensable in any effective form of federal government. It is possible that Mr. Holman and the other proponents of the constitutional amendment do not, in actuality, like a federal form of government. They are advocates of decentralization. The proponents of the amendment probably do not consciously think of their proposal in terms of federation or confederation. However, the proposed amendment in various of its forms might put us a long way back down the road toward confederation. Before we take this step we should take a long hard look at the experiences of our constituent states under the Articles of Confederation. Constant and vivid reminders of the troubles arising out of the weakness of that national structure led the framers of the Constitution to substitute a federation for a confederation. As to the fourth axiom (i. e., supersession of Federal legislation by treaties), since both Federal laws and treaties are the "supreme law of the land", it is only logical that the latter in time should, as they do, prevail. It is firmly established that Congress may pass legislation which will in turn supersede a treaty," though from an international standpoint it would not relieve the United States of any of its obligations under the treaty. 23 The fifth question is whether a treaty can affect or amend the United States Constitution. Mr. Holman admits that there is a disagreement among lawyers as to the proper interpretation of Missouri v. Holland (252 U. S. 416 (1920)). The disagreement concerns the breadth of the holding. There is general agreement at least that the Court held that Congress has the constitutional authority to pass legislation in execution of a treaty, whereas it might not have such authority in the absence of a treaty. This is tantamount to saying that a treaty, which itself does not contravene any provision of the Constitution, may affect the division of functions between the Federal and State Government." It is inaccurate, however, to refer to this as "amending the Constitution," as the power to accomplish this result was expressly and necessarily placed in the Constitution (arts. II and VI) from the beginning. The disagreement is over the question of whether this is as far as the Court went, or whether it went so far as to say that there is no limit to the treaty power, and in particular that treaties are not subject to constitutional limitations and can, in affect, amend the Constitution. Mr. Holman says that the "logical application" of this case would be that a treaty can amend the Constitution. Having assumed his interpretation to be the correct one, he projects at some length a number of dire consequences that might flow from such an application. On the other side the following brief points may be made. Missouri v. Holland is now 32 years old; its "logical application," as envisaged by Mr. Holman, has so far not come to life. In fact, since the decision in Missouri v. Holland the United States Supreme Court twice has reaffimed the long-established doctrine that the treaty-making power must be exercised in subordination to the applicable provisions of the Constitution. Even if a back-door "amendment" of the Constitution by a treaty were a legal possibility, it is highly unlikely that two-thirds of the Senators would conspire with the President to reach this result. Another prerequisite for such an "amendment" would be that the treaty, as negotiated with the other states, was of a self-evecuting nature. Yet another requirement 25 Whitney v. Robertson, 124 U. S. 190; Cook v. U. S., 288 U. S. 102. 24 In this connection one must never lose sight of the fact that two-thirds of the Senators must desire to enlarge Federal powers at the expense of State powers before any such result can be achieved through exercise of the treaty power. The Senate can, and normally will, refuse to give its advice and consent to the ratification of a treaty which would permit broad incursions into the prerogatives of the States. It is extremely unlikely that the Senate would give its advice and consent to a human-rights covenant which did not contain a "Federal-State" clause and it is equally unlikely that the Executive would submit such a treaty to the Senate for its advice and consent. 25 De Geofroy v. Biggs, 133 U. S. 258, at 267 (1889); reaffirmed in Asakuru v. Seattle, 265 U. S. 332, at 341 (1924), and U. 8. v. Curtiss-Wright Export Corp., 299 U. S. 304 at 320 (1936). would be that the United States Supreme Court would have to concur in the asyet never-used "logical application" of its prior holding in Missouri v. Holland. Even assuming that Mr. Holman is correct in his interpretation, the "ifs" involved in any situation which might be the cause for alarm are patently very large. Having painted the direst picture possible, Mr. Holman urges passage of a constitutional amendment proposed by the American Bar Association: "A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty." The first sentence of this proposed amendment is unobjectionable, except from the standpoint of possible confusion arising from the ambiguity of the language employed. However, in my view there is no need for such an amendment, since all indications are that Missouri v. Holland will not be construed as changing the rule which emphatically denies that the treaty-making authority "extends so far as to authorize authorize what the Constitution forbids."" The first part of the second sentence of the proposed amendment would make all treaties non-self-executing. This provision is unnecessary also, since the Senate in giving its advice and consent to ratification can specify that certain or all provisions of a treaty shall be considered henceforth as non-self-executing. In such a case, enabling legislation is required for implementation of the treaty provisions. The clause in the second sentence of the proposed amendment which reads, "which it could enact under its delegated powers in the absence of such treaty,” is designed to have the effect of annulling the holding in Missouri v. Holland. Although such a proposition may have strong emotional appeal, it has certain practical disadvantages which should be carefully weighed before any such idea is incorporated in a constitutional amendment. As we all know, amending the Constitution is both a serious and complex process, and a proposal for amendment should not be made lightly or without good cause. In the present instance the alleged cause is a fear that the Constitution in its present form can and may be amended through exercise of the treaty power. Upon examination, the fear (and hence the cause behind the proposals) seems to evaporate into thin air. If this fear is not the cause, what then is the object of the whole campaign to amend the Constitution? The underlying objectives probably are several and varied. Certain parts of the suggested amendments, such as the American Bar Association's phrase that "no treaty can amend the Constitution," can be attributed to well-intentioned, if overzealous, desires to protect our cherished American constitutional liberties from nonexistent hobgoblins. Other parts, such as the ABA's proposal that the treaty power be strait-jacketed by the 10th amendment, probably are motivated by a perfectly honest desire to cut down on federal powers, regardless of the effects on our relations with other states. Yet another motivation must be an intestinal dislike of international conventions in the field of individual rights. Some people believe, either consciously or unconsciously, that Americans have their liberties guaranteed, and others ought to shift for themselves. Of course this is alien to the whole ideological concept of the United Nations. It is entirely irrelevant whether we label the feeling as Americanism, neoisolationism, or call it by any other name. The motivations are perfectly honest and clear. However, the zeal of the proponents has carried some of them away and has led them to describe the international conventions, especially those related to genocide and human rights, as not only undesirable but also dangerous. It is the nonexistent danger which is described as making necessary a constitutional amendment. Solicitor General Philip B. Periman, in a Department of Justice memorandum on Senate Joint Resolution 130, 82d Congress, filed with the Judiciary Subcommittee on June 19, 1952, summarized the situation as follows: "Since any constitutional limitation of the scope of treaties would weaken the position of this Nation at the international bargaining table, it is incumbent on the proponents of such a limitation to show a definite and compelling need for it. That showing is not made by pointing to particular treaties, not yet ratified or even submitted for ratification, which rightly or wrongly are said to be objectionable. It would be as appropriate to urge that because Congress may pass and doubtless has passed, some bad laws it should be deprived of legislative Ibid. power. If the United Nations conventions to which objections have been made by some of the proponents of these amendments are as bad as they are said to be, they will presumably not be ratified. And certainly there is no warrant for lightly assuming that the President and two -thirds of the Senate, all of whom are bound by oath to support the Constitution, would seek to subvert it." Pointing an accusing finger at various United Nations conventions, in draft form or otherwise, the various proponents of constitutional amendment say that under our present constitutional system these documents are Trojan horses in our midst. I submit, and I hope that I have demonstrated, that, as far as representing dangers to our liberties is concerned, they more closely resemble Don Quixote's windmills. Mr. SMITHEY. The first witness is Mr. Rudolph Faupl, who is the international representative of the machinists' union, A. F. of L. The CHAIRMAN. We are delighted to have someone here representing that very fine organization. STATEMENT OF RUDOLPH FAUPL, INTERNATIONAL REPRESENTATIVE, INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. OF L. Mr. FAUPL. My name is Rudolph Faupl. I am the international representative of the machinists' union. My home is in Milwaukee, Wis. In my capacity as international representative for the machinists' union, I attend international labor conventions, conferences, and, in general, work with representatives of other free trade unions toward improving the lot of workers everywhere and the attainment of peace with justice. On behalf of the Intenational Association of Machinists, I wish to voice and record strong opposition to Senate Joint Resolution No. 1, and sincerely express the hope of my organization that this resolution will not receive the approval of your committee. The International Association of Machinists has concerned itself not only with the welfare of America and American labor; but we have come to realize that if freedom or democracy is to survive in our country and succeed throughout the rest of the world, there must be cooperation among nations who value freedom as we do in America. I am one of many labor people who work toward cooperation with free trade unions everywhere and have observed that Senate Resolution No. 1 is casting serious doubts on our sincerity of purpose, particularly in the light of testimony before your committee from some of the supporters of the resolution. The CHAIRMAN. You are referring to Mr. McGrath? Mr. FAUPL. That is right. The CHAIRMAN. Why didn't you say so? Mr. FAUPL. I will come to that point. I refer particularly to the testimony of the former employer representative to the ILO who contends that ILO conventions, when approved, become international law and the use of treaties is a means of transferring legislative authority over our own domestic affairs from our own lawmaking bodies to an international agency. This gentleman and some of his associates would have you believe that American labor and Government representatives to the ILO have gone on a rampage, bent on destroying all that is good in America and embracing all that is evil in the rest of the world--that which they call socialism. 30572-53--50 Mr. Chairman and members of the committee, it is indeed unfortunate that some of our employer representatives to the ILO should so completely lose their sense of fair play in reporting the activities of the International Labor Office as to misconstrue interpretations of conventions and recommendations adopted by that agency. I, too, have been a representative to the ILO and participated in the drafting and adoption of some of the conventions and recommendations referred to in the testimony before your committee. I submit that the reports of some of the employer delegates, which were given before your committee, are outright distortions and unjustifiable attacks on an agency that has been in existence for over 30 years and has performed valuable work toward improving the standard of living of exploited workers. Let's examine some of the vicious Socialist legislation the ILO is trying to standardize, as the ex-employer representative mentions in his testimony before your committee. They are safety provisions in the building industry. Did we not have safety provisions in the building industry established through legislation and collective bargaining long before Mr. McGrath became the employer representative to the ILO? The ex-representative then goes on to mention the conventions adopted by the ILO dealing with such matters as the gathering of statistics on wages and hours in mining, manufacturing, building, and agriculture; Government regulation of written contracts of employment of indigenous workers: Government regulation of hours of work and rest periods of bus and truck drivers; medical examination of children employed in industry; freedom of association of employees and protection in the right to organize; the setting up of a Federal employment service; regulation of night work of women employed in industry; labor clauses in public contracts; regulation of methods of payment of wages; Government regulation of employment agencies; minimum wages in agriculture; equal pay for men and women for equal work; holidays with pay in agriculture; social security; Government benefits for maternity. These are some of the items that Mr. McGrath is holding up as the horrible socialistic practices the ILO is trying to export to America, when it is a matter of fact that practically all of the items enumerated have been established in our own country through Federal or State legislation or collective bargaining or both, resulting in the highest standard of living in the world for the American worker. Mr. McGrath goes on to testify before your committee on the activities of the ILO in 1951, and I quote: At the 1951 conference, the ILO passed a recommendation which contained two significant provisions. It stated, first, that under certain circumstances legislation should be enacted to enable governments to "negotiate, conclude, revise, and renew collective agreements," and, second, “Where appropriate, having regard to established collective-bargaining practice, measures, to be determined by national laws or regulations and suited to the conditions of each country, should be taken to extend the application of all or certain stipulations of a collective agreement to all the employers and workers included within the industrial and territorial scope of the agreement." Briefly summed up, what this means is that government should be empowered to take over collective bargaining and if it chose to do so, to spread it by arbitrary decree, to establishments not covered by an agreement. I would like to quote the official record on the resolution that Mr. McGrath has made a reference to, which is recommendation 91 of the |