ters of international concern; and that the President, with the U.S. Senate concurring, may, on behalf of the United States, under the treaty power of the Constitution, ratify or adhere to any international human rights convention that does not contravene a specific constitutional prohibition.

Senator CASE. Are those words of limitation or words of emphasis? Mr. BITKER. They are words of emphasis.

Senator CASE. I want to be sure of this because this is a slippery

area.

Mr. BITKER. They are also words of limitation; that is, no treaty can do anything which is not permitted under our U.S. Constitution. It serves both purposes, Senator.

Incidentally, that report of that special committee of lawyers headed by Justice Clark is out of print. It is also one of those disappearing species.

Senator STONE. I know of a way you could get it printed.

Mr. BITKER. That is exactly what I am going to ask. Mr. Chairman. I am going to ask leave to file it with my statement and it would then become a part of this record, so it may be properly referred to.

Senator STONE. That will be done, and the instruction will further be given that this copy be returned to you.

Mr. BITKER. Thank you very much. It is my copy.

Senator STONE. Would you be kind enough to hand that to the reporter. Thank you.

[See appendix, p. 139.]

ABA SECTIONS' REPORTS

Mr. BITKER. During the course of the debate that went on within the ABA, there were two full reports prepared by sections of the ABA. As you may be aware, the ABA is departmentalized and has a number of sections.

Senator CASE. It has its liberal side and its conservative side, and they alternate, I think, by agreement, as far as control of the bar association. It's like the nation of Colombia-the south, the north, the east, and the west.

Mr. BITKER. I am not sure about that for the ABA. The south and the north were involved in this debate, I can assure you.

In any event, there are two reports, one from the ABA Section on Individual Rights and Responsibilities, and the other is a report of the ABA Standing Committee on World Order Under Law. Both of these appear as part of the 1971 hearings, so that they are before you.

Then, in February 1970, President Nixon sent a letter to the Senate asking that the Senate give attention to this unfinished business and he encouraged it to act in support of ratification of the treaty. Thereafter, as you know, new hearings were held in April and May 1970, and again in March 1971.

I know that this is all known to you, but I spell it out now just to emphasize the repetition that has gone on with respect to these matters over these many years.

There were favorable reports, one by the subcommittee to the full committee in 1950, and then favorable reports in 1970, in 1971, and again in 1973, and in 1976.

I don't know what the history is of these matters before the Senate, but I would be surprised if there were any matter which had this much support for full Senate action, which had not been favorably acted on by the Senate.

COMMITTEE'S 1976 REPORT

Now, as you know, there were no hearings prior to the hearings of 1973 and the report of 1976. Incidentally, there is no better review of what went on over these many years

Senator STONE. May I apologize for having to leave. Senator Sarbanes will preside.

Senator SARBANES [presiding]. All right, Mr. Bitker, would you please proceed.

Mr. BITKER. Thank you, Mr. Chairman.

I was about to say that there is no more succinct review or better review of the history and the status of this Convention before the Senate than that as set forth in the committee's 1976 report. This tells the story. That report, incidentally, includes the three understandings and the one declaration about which there has been some discussion this morning.

I want to say that included in the American Bar Association resolution of support is support for these three understandings and the one declaration. We took them literally out of the 1973 report, which was again repeated in the 1976 report. Personally, I see no problem concerning this implementing legislation. So far as I know, none has even been suggested.

I am not going to now repeat the legal arguments that have been presented to this committee over and over again, some of which have been pinned down this morning in the request for further enlightenment, which I am sure will be forthcoming from the State Department. Senator CASE. When you go through generations of this body, you have to continually reeducate the new Members. We must not be impatient about it.

Mr. BITKER. I should not be. I have lived with this since 1949, Senator.

Senator CASE. We should all do the same.

Mr. BITKER. Thank you, Senator.

U.S. FAILURE TO RATIFY

It is difficult to take seriously any basic constitutional objection to the Convention. It is conceivable, though none has been urged, that there are public policy objections to ratification; but it would be hiding behind a false front to fail to ratify on spurious constitutional grounds.

As has been noted before, 82 U.N. members-this means the world community-have ratified or acceded to this Convention. That could be 83, depending upon how you view the vote of China, their present representative in the United Nations. As I am sure you are all aware, the United States, which took the leadership in drafting and securing its adoption in the United Nations in 1948, is the outstanding laggard in ratifying it. Its failure to ratify borders on constituting a national disgrace.

As the late Chief Justice Earl Warren said in December 1968, "We as a nation should have been the first to ratify the Genocide Convention. Instead, we may well be the last."

PRESIDENT CARTER'S SUPPORT

In my formal statement I refer to a quotation from President Carter made on March 17 of this year to the United Nations with respect to his support, particularly of the Genocide Convention. I do understand, although I am uncertain about this-maybe Mr. Glennon knows that the President has sent a special message on this occasion indicating his support and urging ratification. Is that correct, as I understand it?

Senator SARBANES. That is correct. The President has sent a special message to the Senate.

Mr. BITKER. I am delighted to hear it. He now has taken a position, incidentally, which follows the position with respect to this treaty of Presidents Eisenhower, Kennedy, Johnson, Nixon, and Ford.

U.S. LEGAL OBLIGATION

The legal obligation-and we have asserted all the time that there is an obligation on the United States to do something-was expressed by the U.S. Representative on the International Court of Justice, Philip C. Jessup, when he said:

It is already law, at least for members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter, a treaty to which they are parties.

Certainly nothing is more basic to this obligation which the United States assumed when it ratified the U.N. Charter, than to outlaw mass murder of a national, ethnical, racial, or religious group, as such, whether committed in time of peace or of war.

DELAYING RATIFICATION UNJUSTIFIED

I again repeat that there appears no provision in the Constitution that would support a successful attack on constitutional grounds, and no objections asserted on a legal basis justifies delaying ratification. Any conceivable uncertainty as to a few phrases has been cured by the understandings. If there are justifiable reasons of national policy for not ratifying, they have not been advanced.

NEED TO FISH OR CUT BAIT

I have referred in this hearing through which the committee has sat to the need to "fish or cut bait," which must be emphasized. The committee has certainly exhibited great courtesy as well as extreme patience over the years in allowing everyone and anyone to express his or her views on the subject. This committee said in 1976 that further hearings on the treaty were not warranted in view of the voluminous record made in hearings in 1950, 1970, and 1971. The only one fact that is different today is the position of the American Bar Association, which has changed since the last hearing held by this committee. That position now is one supporting ratification, and it has so been recorded with this committee.

Each time this committee has acted it has reported it out favorably. But each time it has reached the Senate floor an actual or threatened

filibuster has prevented the Senate from voting to support a commitment we made in December 1948, when we approved the treaty in the United Nations. It is already long past the time to sign on the dotted line. The United States is now reestablishing its moral leadership in the world. If it now ratified this Convention, it would be a clear demonstration that it is faithful to its pledge under the United Nations Charter. More than that, it would also be acting in its own best national interest.

Thank you very much.

[Mr. Bitker's prepared statement and the ABA recommendations follow :]

RESOLUTION ADOPTED BY HOUSE OF DELEGATES, AMERICAN BAR ASSOCIATION, FEBRUARY 17, 1976, AND THE SUPPORTING REPORT-AMERICAN BAR ASSOCIATION, SECTION OF INTERNATIONAL LAW

RECOMMENDATION

The Section of International Law recommends adoption of the following resolutions: Be it

Resolved, That the American Bar Association favors the accession of the United States to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide with the following Understandings and Declaration which have been approved by the Senate Committee on Foreign Relations: 1 1. That the U.S. Government understands and construes the words "intent to destroy, in whole or in part, a national ethnical, racial or religious group as such" appearing in article II to mean the intent to destroy a national, ethnical, racial or religious group by the acts specified in article II in such manner as to affect a substantial part of the group concerned.

2. That the U.S. Government understands and construes the words "mental harm" appearing in article II (b) of this Convention to mean permanent impairment of mental faculties.

3. That the U.S. Government understands and construes article VI of the Convention in accordance with the agreed language of the Report of the Legal Committee of the United Nations General Assembly that nothing in Article VI shall affect the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside the state.

PREPARED STATEMENT OF BRUNO V. BITKER, CHAIRMAN, COMMITTEE ON INTERNATIONAL HUMAN RIGHTS, SECTION ON INTERNATIONAL LAW, AMERICAN BAR ASSOCIATION

Mr. Chairman and Members of the Committee, my name is Bruno Bitker and I am chairman of the American Bar Association's Committee on International Human Rights of the Section on International Law. I am honored to appear before you today on behalf of the American Bar Association to urge the Senate to give its advice and consent to ratification of the Genocide Convention. I have appeared before this Committee at prior hearings, conveying the support of a variety of organizations. I am, however, especially delighted to do so this time on behalf of the ABA, which represents the organized bar of this country. The American Bar Association, as this Committee is aware, did not easily or quickly arrive at its endorsement of the Genocide Convention. In fact, in 1949, prior to the hearings conducted by this Committee, it had decided not to support ratification because the treaty "involves important constitutional questions..." not satisfactorily resolved. Subsequently, in 1970, following President Nixon's request to the Senate to act on the Genocide Convention, the ABA again considered the question. But by a divided vote of 130 to 126 in the House of Delegates, it declined to change its earlier stand. Opponents of ratification had frequently cited the ABA position as justifying U.S. inaction. However, upon further study and consideration, in February, 1976, the ABA reversed its position and by an overwhelming vote recommended the ratification of the Convention. A copy of that recommendation and the supporting report is filed with this statement.

1 S. Exec. Report No. 93-5, 93rd Congress, 1st Sess., (1973).

Though considerable attention was given to this Convention by the bar association before it decided to support it, it does not match the extensive and thorough analysis of every provision accorded to it by this Committee since President Truman, on June 16, 1949, sought the advice and consent of the Senate to ratification. The published hearings of the subcommittee held in January and February, 1950, contain about everything that could be said on the subject, pro and con. The opposition feared that it might undermine our constitutional structure. On the other hand, the favorable testimony was so meaty, it would be difficult to single out specific references. However, if any Senator or staff member wishes to read the supporting testimony of just one witness, I would suggest the remarkable presentation by Philip B. Perlman, Solicitor General of the United States (p. 22, et seq.).

On May 23, 1950, the subcommittee reported out the Convention favorably with one declaration and four understandings (summarized in Legislative History of the Committee on Foreign Relations, S. Doc. No. 247, 81st Cong., 2d Sess. at p. 27, 1950). The full committee, however, withheld action and for almost two decades it remained in the Senate's deep freeze. Today it is eligible for a place in the Guiness Book of World Records as being the oldest treaty pending before the Senate (U.S. Senate, Legislative Calendar, 95th Congress, March 31, 1977).

Although the Senate had taken no further action following the 1950 hearings, in July, 1963, President Kennedy sent to the Senate three human rights treaties (Political Rights of Women, Abolition of Forced Labor, and a Supplementary Slavery Convention). In the course of the hearings on these conventions in 1967, action on the Genocide Convention was urged. However, no action was taken on

it.

In 1968, the year designated by the United Nations as Human Rights Year in honor of the 20th anniversary of the adoption of the International Declaration of Human Rights, the President created a President's Commission for the Observance of Human Rights Year. The Commission urged ratification of the Convention. More particularly, it created a special committee of lawyers headed by Supreme Court Justice Tom C. Clark (retired), which included some of the most prominent lawyers in the country. That committee, on which I was privileged to serve, issued a report on the treaty-making power of the United States in human rights matters. Justice Clark, in his letter of transmittal, said in part: I would like to reiterate here, however, our finding, after a thorough review of judicial, congressional and diplomatic precedents, that human rights are matters of international concern; and that the President, with the United States Senate concurring, may, on behalf of the United States, under the treaty power of the Constitution, ratify or adhere to any international human rights convention that does not contravene a specific Constitutional prohibition.” In its conclusion, the report said:

66

It may seem almost anachronistic that this question continues to be raised. It is nearly a quarter of a century since this country used the treaty power to become a party to the U.N. Charter, one of whose basic purposes is the promotion of human rights for all. The list of parties to the various human rights treaties proposed by the U.N. has become longer each year. In each of the last two years the U.S. Senate has approved a human rights treaty without a single dissenting vote. In December, 1968, the Chief Justice of the United States noted that we as a nation should have been the first to ratify the Genocide Convention and the Race Discrimination Convention. And yet the suggestion persists that this Nation is constitutionally impotent to do what we and the rest of the world have, in fact, been doing."

This report will be of value to members of this Committee and to the staff that drafts your report, and because it is now out of print, I ask consent to file my copy as a part of the record of these hearings.

Two other reports prepared by entities of the American Bar Association in support of ratification appear in the printed hearings of the subcommittee held March 10, 1971. One, at page 147, is the report of the ABA Section on Individual Rights and Responsibilities and the other, at page 196, is the report of the ABA Standing Committee on World Order Under Law. I participated in the drafting of the several reports to which I have alluded in this statement.

In February, 1970, President Nixon reminded the Senate that the Convention continued to be unfinished businesss and urged prompt action. Thereafter, new hearings were held in April and May, 1970, and again in March, 1971. The Committee reported out the Convention favorably on December 8, 1970, on May 4, 1971, on March 6, 1973 and again on April 29, 1976.