we were able to find a tabulation of the countries which have ratified the Convention with an indication of all of the reservations and declarations. We can provide that to you.

Senator STONE. That will be made a part of the record and we are most grateful to you for that information.

[See appendix, p. 95.]

Senator STONE. Secretary Christopher.

EFFECT ON INCONSISTENT STATE LAWS

Mr. CHRISTOPHER. Mr. Chairman, I would like to, if I may, elaborate and perhaps clarify an answer to a prior question. It has to do with inconsistent State laws and the effect of the treaty and the implementing legislation on inconsistent State laws.

The implementing legislation provides specifically that the legislation shall not preempt all State laws and is not meant to be the exclusive legislation in this field, but will invalidate inconsistent State laws. That is a very important legal distinction, the difference between a statute which entirely preempts the field and ousts all other laws on the one hand, and Federal legislation on the other hand which only invalidates those State laws which are inconsistent.

We have not made a review of all of the hundreds, perhaps thousands, of State laws that would possibly be impacted by the implementing legislation; but I want to make it clear that in the legislation that has been sent up, in section 2, the provision is made that only those State laws and local laws which are inconsistent with the Federal legislation would be invalidated, and that the legislation does not mean to preempt the entire field.

Senator STONE. Senator Case, do you have any questions?

Senator CASE. Thank you, Mr. Chairman, but not at this time. Senator STONE. I have no further questions.

CAUTION CONCERNING INTERDEPENDENCE IN FOREIGN POLICY SUGGESTED

Senator CASE. Mr. Chairman, I do have something. Certainly I am not going to delay this unduly. When we get into things like the Connally and Vandenberg Reservations, I am reminded that there were actions that were thought by all good, right-thinking people to be arbitrary and ultraconservative. The Knowland amendment and a few other things of this kind were thought to be the kind of thing nice people did not do. Then along came the McCarthy era and along came other things, and Vietnam, and then suddenly all the right-thinking people all discovered that Senator Knowland and Senator Connally were people of great wisdom.

I am not sure that there may not be some parallel here. Some of the men up at Harvard, I think, were writing about having a little bit of caution about all of this interdependence and suggesting that maybe a little bit of detachment might not be a bad idea as far as foreign policy went, as opposed to a too great involvement.

These are just ruminations on my part, designed to be forgotten and stricken from the record.

Senator STONE. I object to them being stricken from the record. They are good ruminations.

Senator CASE. The point is that questions like these should not be brushed over and people should not be bullied, either intellectually, politically, or in any way, in persisting to trying to get answers to them. We should be sure we know what we are saying and meaning to do, what we intend to do.

LEGAL DIFFERENCE BETWEEN UNDERSTANDING AND RESERVATION

Senator STONE. Senator Case, along those lines, I want to inquire of Mr. Hansell, the Secretary, and any other experts they have with them one last thing. That has to do with the difference, legally, between an understanding and a reservation. That was covered in a memorandum from the Office of the Legal Adviser of the Department of State, dated March 22, 1971, and made a part of last year's committee report. Do the Department and its legal advisers still feel that is an accurate description of the legal situation?

Mr. HANSELL. Yes, indeed, Mr. Chairman.

Mr. ROVINE. [Nods affirmatively.]

Senator STONE. If we in the committee, or in the Judiciary Committee, or in the full Congress wanted to define the crime of genocide with particularity, to define the injury of mental harm with particularity, would that be done by way of a reservation, or would that be done by way of an understanding? How would that be done?

Mr. HANSELL. It would be done almost surely by way of understanding, because it would be implementing the terms of the convention.

Senator STONE. For example, suppose the rest of the ratifying States to the convenion did not take the view that to act against the group you would have to act against a substantial segment of the group. Suppose it were the current interpretation or the intended interpretation of the majority of ratifying States that to have an intent to destory the whole group and to commence implementing that intent by acting against one member of the group was sufficient to constitute the offense of genocide under the convention. Then, hypothetically, if we differed with that, according to last year's understanding would we have to differ with it by an understanding or a reservation? I am not asserting yet that that is the case.

Mr. HANSELL. I think the answer would be that we would nonetheless do it by an understanding. However, I will call to your attention that when you look at the list of reservations and declarations taken by other countries

Senator STONE. They did it by reservation.

Mr. HANSELL. In some cases. But you will see that there have been objections entered by some countries to reservations and declarations taken by others. Those are included in the compilation that is now in the record. So we would have available to us, in addition to the opportunity to enter our own statements, which I think, we would do by understanding, an opportunity to object to the type of interpretation that you have indicated if we thought it were important to do so.

Senator STONE. Would the understanding have the same force of law that a reservation would have as to our own obligations?

Mr. HANSELL. Yes, indeed.

Senator STONE. That is very important because it has been asserted that unless you adopt something by way of reservation, you have not legally adopted anything.

Do you assert the contrary, that to adopt this convention with understandings would have the same legal effect, apart from the question of whether we are affirming or changing, as if we were to adopt the convention with reservations?

Mr. HANSELL. It would. We would want to take, I think, a conservative view of what we are saying, and if there were reason to be doubtful at all as to whether it is an interpretation as opposed to a variation, I suppose one would want to err on the side of conservatism.

Senator STONE. Conservatism, then, if you were in doubt as to whether you were affirming or changing, would indicate a reservation, which would leave no doubt if it were a gray area.

Mr. HANSELL. Yes, indeed, sir.

The legal effect under international law would be the same; but there are, as has already been pointed out, psychological considerations that are pertinent here as well.

OTHER RATIFYING STATES' INTERPRETATION OF CRUCIAL ISSUES

Senator STONE. Let me ask for your legal help between now and the time that we take this convention up.

Could you analyze the three crucial issues we have discussed today from the interpretation point of view of the other ratifying States, particularly those that have either expressed a reservation or an understanding those are the ones about which we are talking on the issues of the World Court, extradition, mental harm, and I have to throw in a fourth, on the issue of substantial segment, and on the definition of genocide according to the way this committee did it, or varying from that, last year? When we know that, we would know the conservative way to approach whatever either interpretation or change the committee would wish to recommend to the full Senate.

That would be extremely helpful in supplementing the legal memo we used in last year's committee report.

Mr. HANSELL. We would be pleased to do so, Senator. [The information referred to follows:]

ANALYSIS OF RESERVATIONS AND UNDERSTANDINGS EXPRESSED BY RATIFING STATES OF GENOCIDE CONVENTION

[Supplied by Department of State]

Senator Stone requested an analysis of the reservations or understandings expressed by ratifying states with respect to four subjects: (a) the World Court; (b) extradition; (c) mental harm; and (d) the definition of genocide, particularly the meaning of "substantial segment" of a national, ethnic, racial or religious group.

(a) The Genocide Convention has been ratified or adhered to by 83 states, of which 21 have entered reservations or understandings. The full texts of these reservations and understandings, along with the objections that have been raised against certain of them by other parties, have been submitted for the record.

With respect to the World Court, 19 of the 83 parties have entered a reservation to Article IX which provides that disputes between the parties relating to interpretation, application of fulfillment of the Convention, including disputes relating to the responsibility of a state for genocide or for any of the acts enumerated in Article III of the Convention, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Reservations to Article IX were entered by Albania, Algeria, Argentina, Bulgaria, Byelorussia, Czechoslovakia, the German Democratic Republic, Hungary, India, Mongolia, Morocco, the Philippines, Poland, Romania, Rwanda, Spain, the Ukraine, the Soviet Union, and Venezuela.

Most of the reservations to Article IX, including those of the Communist states, specifically require the agreemnt of all the parties to a dispute for its submission to the International Court. This reflects the general policy of these states not to submit to the jurisdiction of the Court. Algeria, India, Morocco, the Philippines and Venezuela have also taken this approah. Argentina's reservation to Article IX applies only to its "territories," a reference to the disputed Falkland Islands. Rwanda and Spain have reserved completely to Article IX. Objections to some or all of these Article IX reservations were entered by Australia, Belgium, Brazil, the Republic of China, Cuba, Ecuador, Greece, the Netherlands, Norway, the Republic of South Viet-Nam, Sri Lanka, and the United Kingdom. The objections of the Republic of China and the Netherlands specifically state that these countries do not regard the reserving states as parties to the Convention. It is not clear from the record whether the other objecting states regard the reserving states as parties.

The United Kingdom, in a communication to the U.N. Secretary-General dated 21 November 1975 said that:

"The Government of the United Kingdom of Great Britain and Northern Ireland have consistently stated that they are unable to accept reservations in respect of Article IX of the said Convention; in their view this is not the kind of reservation which intending parties to the Convention have the right to make." In our judgment, the reservations to Article IX of the Convention are unsound. The United States is a party to many treaties which require submission of disputes regarding interpretation or application to the International Court of Justice at the request of any of the parties to such disputes. The Senate has not attached a reservation to any of these agreements, which we believe is a sound approach. We are gratified that 64 parties to the Genocide Convention have no reservations or understandings concerning Article IX.

(b) Concerning extradition, 2 of the 83 parties have entered statements. The Philippines stated upon ratification that it "does not undertake to give effect to [Article VII of the Convention] until the Congress of the Philippines has enacted the necessary legislation defining and punishing the crime of genocide, which legislation, under the Constitution of the Philippines, cannot have any retroactive effect."

Venezuela entered a reservation stating that "with reference to Article VII, notice is given that the laws in force in Venezuela do not permit the extradition of Venezuelan nationals."

Objections to the Philippines statement on Article VII were made by Brazil, Greece, Norway, South Viet-Nam, and the United Kingdom. Objections to the Venezuelan reservation to Article VII were made by the same countries except Brazil.

In view of the fact that only two of the 83 parties have entered reservations on the question of extradition, extradition under the Convention seems not to be a troubling or difficult issue for most states. The third understanding attached by the Senate Foreign Relations Committee to the proposed resolution of ratification, and Section 3 of the proposed implementing legislation, will protect the interests of the United States and its nationals with respect to extradition.

(c) and (d) None of the 83 parties entered reservations, understandings, or other statements regarding mental harm, "substantial segment," or the definition of genocide. United States interests with respect to these matters would be proected by the first and second understandings of the proposed resolution of ratification, and by the terms of the proposed implementing legislation.

Senator STONE. Before we leave this subject we will hear from Mr. Bruno Bitker.

Senator CASE. Mr. Christopher, did you have something further that you wished to sav?

Mr. CHRISTOPHER. Yes; thank you. Senator Case.

I simply wanted to make a brief closing remark, Mr. Chairman. Senator STONE. Please do.

STATE DEPARTMENT ASSISTANCE TO COMMITTEE

Mr. CHRISTOPHER. Although this treaty has been pending for a long time and there has been discussion of it back and forth, and every

question has been mooted and debated, nonetheless, I wanted to assure you that the Department of State regards each of the questions now being raised as important and deserving of a full and complete answer. Some of these are highly technical questions; some of them are better answered in writing than they are orally.

I want to assure you that if members of this committee or its staff have questions, we will respond to them as fully and promptly as we can. This treaty, this convention, has a very high priority with President Carter and this administration, and we want to do everything we can to achieve its adoption and ratification this year. We commit ourselves to work with the committee, to supply answers and assist you in every way we can.

NECESSITY OF HARMONY BETWEEN CONVENTION'S PRINCIPLES AND

CONSTITUTIONAL PROTECTIONS

Senator STONE. Mr. Secretary, it comes down to this: Everybody in this Congress, without question, is committed to the principle embodied in the Genocide Convention. No less so are almost all, if not all—and I would say all-committed to the constitutional protections accorded the citizens of the United States. Somehow we have to find a way not only to harmonize the two in substance, but in perception. When that is done, the convention will be ratified overwhelmingly. Until that is done, it won't. It will hang up the same way it has since 1950. If the American Bar Association feels that it can and is being appropriately harmonized, then it is up to us to make sure that it comes out that way and is seen that way as well.

Don't you agree with that?

Mr. CHRISTOPHER. Absolutely. I think that your statement is a very good indication of the path we have to follow to recognize our constitutional principles, but also to embody the tremendously important human rights initiative which is reflected in the Genocide Convention.

Senator STONE. I thank you all for appearing here this morning. It has been most constructive and most helpful.

[State Department response to additional questions for the record follow:]

MR. HANSELL'S RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD Question 1. Are you aware of any state or federal law which would be superseded by the Genocide Convention?

Answer. There is no state or federal law which could be superseded by the Genocide Convention itself. As Artice V makes clear, the Convention is not self-executing and requires implementing legislation. That legislation, once adopted, would supersede any inconsistent state and federal laws. However, we are not aware of any inconsistent state or federal law on this subject. Question 2. Article VI provides as follows:

"Persons charged with genocide or any of the other acts enumerated in article II shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."

(a) On its face this article appears to mean that, even if the conduct in question violates the law of the United States or of a state of the Union, the person engaging in that conduct must nevertheless be tried in the country where the conduct took place. But you point out that the negotiating record makes clear