ton 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 guards against abridgement by treaty or executive agreement of essential berties guaranteed to the individual by the Bill of Rights. A constitutional aendment to this effect is unnecessary and redundant.

The Senate and the President, and later the Congress as a whole, each has #pportunity to reject, modify, or nullify an international agreement insofar 2s it affects internal law. Initially the President and the State Department en 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 f his ability to effect modifications in proposed international agreements is fand in the proposal submitted by the United States to the United Nations Commission on Human Rights which would insure that the constitutional balance ween Federal and State powers under our Constitution could not be altered y the proposed Covenants on Human Rights (Proposed art. 48, Draft Covenant 2 Civil and Political Rights, proposed art. 26, Draft Covenant on Economic, Sial, and Cultural Rights).

Stomid the President sign a treaty, the Senate is free to refuse ratification. I: ed. a minority of the Senate--one-third of a quorum plus one can block Aerican entry into any treaty arrangement. Moreover, if it so desired, the State is free to ratify with any reservations it considers important. For example, the Senate Foreign Relations Subcommittee on Genocide recommended * the full committee that the Genocide Convention be ratified with four "underandings." Among these understandings was one which was designed, accordto the late Senator McMahon, chairman of the committee, to overcome fears that lynchings might be classified as genocidal acts (New York Times, April 13, 1o; Legislative History of Senate Committee on Foreign Relations, 81st Cong., Ine. No. 247, at 27-29 (1950)).

Even if a bad treaty is signed or ratified, a majority of both Houses can pass 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. Teir domestic implications and consequences can be modified or repealed by a sequent Federal act (Head Money Cases, 112 U. S. 580, 597-599 (1884); The herokee Tobacocco, 11 Wall. 616; Chae Chan Ping v. United States, 130 U. S. 581. so (1889); see United States v. Minnesota, 270 U. S. 181, 208 (1926)). The * of Hijo v. United States (194 U. S. 315, 324 (1904)) states "*** it is well led that in the case of a conflict between an act of Congress and a treaty * * * e last one in date must prevail. ***"

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

A third serious misconception relates to the actual content and substance of be proposed international agreements protecting human rights and interdicting es against humanity. It has been claimed that by entering into such an ment 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 ons enjoying a bare minimum of liberty and individual freedom. The Draft Covenants on Human Rights expressly provide, however, that the ants shall not cause any lowering of existing standards in countries whose ards are higher than those proposed in the covenant. For example article + The proposed Covenant on Civil and Political Rights reads:

There shall be no restriction upon or derogation from any of the funda-tal human rights recognized or existing in any contracting state pursuant , conventions, regulations, or custom on the pretext that the present rant does not recognize such rights or that it recognizes them to a lesser

st identical language is contained in article 5 of the proposed Covenant on .c. Social, and Cultural Rights. Azother objection sometimes raised to the Covenants on Human Rights is that - will enable the Federal Government to encroach on areas traditionally ed to State control. These fears should be allayed by the proposed -ra! amendment to that covenant referred to above.

dangers of Senate Joint Resolution 1 to the welfare of this Nation will, elieve, be manifest upon an examination and analysis of the individual ⚫raphs of the proposed amendment.

ex J

SL

(

1

.

In this Constitution" is contrasted a. rights of citizens of the United in this Constitution" it would appear on each section. Except perhaps for

demand protecion from the Federal Saughter House Cases, 16 Wall 56, 79 by the United States Constitution do

other than the United States (In re fonkel, 180 U. S. 109, 122-123 (1901)). ed that the broad term "rights enumers the qualifying phrase contained in hts to those enjoyed wihin the United sin fact intended to prohibit treaties e zumerated rights even in situations to would not actually apply. In any event a constitutional amendment.

e term "rights enumerated" encompasses hos reserved powers invaded by the Federal gestion, many of the most common types of for subject matter does not come within the example, treaties relating to the rights Stress as applied to businesses having no inter#265 U. S. 332 (1924)) would be barred, a viving purely domestic crimes (Charlton v.

Nguities of section 1 are clarified so that agreements which abridge or infringe basic separanteed by the Bill of Rights and the 14th

tion is still open to question. While such a oned constitutional doctrine would probably be gument at some future time that a change in wded since the complex machinery of adopting marcy be utilized merely to restate existing law.

SECTION 2

von Dessolution 1 provides: "No treaty shall authorize or we any international organization to supervise, control, cars of the United States within the United States very e” or any other matter essentially wihin the domestic as per to the objection that the phraseology is ambiguous Kase have no clearly defined legal meaning. For example, Nedererens of the United States within the United States setadon” merely describe the type of rights which cannot beer, where rights are enjoyed by aliens within the base with most constitutional safeguards, a treaty could Nyond: eral bodies to deal with the rights of aliens. On the werd is “citizens," the prohibitions of section 2 apply only

werng of the term "supervision" is uncertain, and existing

je guidance to its meaning in this context. It would seem aseng this word along with the term “control” contemplates a moeda Conal bodies whose powers are even less than "control"

what degree of power less than "control," however, is not

dear. 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 decisons and precedents will be evolving. Throughout this period other nations will esitate to enter into binding commitments with us and the conduct of our reign affairs will thus be seriously hampered.

Since the American Jewish Congress is committed to the principle that the nights of Americans can be safeguarded and extended only in an atmosphere of versal respect for the dignity and rights of all men and that international peration is vitally necessary to assure such universal respect and sensitivity 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 it, if not preclude, the United States from participating in either of these reements as well as in many of the day-to-day activities of the United Nations dimed to elevate standards of conduct in the area of civil and political rights. For example, the proposed Draft Covenant on Civil and Political Rights tains an implementing provision which would authorize an international Human Rights Committee set up thereunder to ascertain facts, report its conasions, and make available its good offices in instances where a nation is Birzed with failure to give effect to the provisions of the Covenant (art. 44, Iraft Covenant on Civil and Political Rights). Since the covenant deals with and political rights which may be considered "essentially domestic in are" as well as "rights of citizens *** enumerated in this Constitution," and since the powers of factfinding and conciliation exercised by the Human hts Committee may well be interpreted as "supervision, control, or adjudicaa within the meaning of section 2 of Senate Joint Resolution 1, it can readily -en that United States participation in attempts to settle problems involving cations of human rights by cooperative and peaceful means might well be ibited.

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

arly the United States will not long be permitted to participate, and in Less can claim no right to participate, in joint investigations and fact finding *th respect to conditions in other countries unless it is willing to permit inquiry 75 perhaps supervision of conditions existing within its own territorial borders. we say that the doctrine of equality before the law which we proudly affirm respect to the relations between our citizens and their Government is Tetely inapplicable to the relations between that Government and other :ements and to the law of nations? Can we retain our moral leadership e free world if we claim special privileges and special immunities from testization or censure by the other nations of the world?

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

tion 2 of the proposed constitutional amendment, although it might not At the United States from ratifying the Genocide Convention in its present could well interfere with future attempts effectively to punish perpetrators - horrible crime. Article VI of the Genocide Convention provides that perCarged with genocide shall be tried by a competent tribunal of the state in the act was committed or by an international penal tribunal only "with set to those contracting parties which shall have accepted its jurisdiction." =gh 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 United 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 re luctant 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. S. 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

terms. Articles 55 and 56 of the United Nations Charter, obligating the parties to "promote" certain objectives and to “pledge themselves to take joint and separate action" for the achievement of certain purposes was held non-self-executin the Fujii case (Fujii v. State, 242 P. 2d 617 (Sup. Ct. Calif.) (1953)). In addition, the Senate in the exercise of its power to impose reservations on treaties. (See Memorandum of Parliamentarian of Senate, 98 Congressional Record 2602, March 20, 1952) may insist as a condition of ratification that the treaty not be considered self-executing.

In view of these safeguards, it would appear unnecessary to include in the Constitution an inflexible provision which would not only subordinate all treaties to conflicting State law in the absence of additional congressional action, but d render them ineffective internally even where no existing law or policy was contravened. Such a requirement would impose a substantial burden on the time and energies of the Congress of the United States without offering protection to individual rights and to our existing democratic system not already available through present procedures. We do not take any position on sections 4 and 5 of Senate Joint Resolution 1 relating to executive agreements.

CONCLUSION

Our analysis of sections 1, 2, and 3 of the proposed amendment leads us to elude that the adoption of these sections in their present form would seriousy hamper the conduct of our foreign relations and our ability to fulfill existing ternational obligations. It would interfere with efforts to serve the interest of the United States and its citizens by promoting universal respect for and servance of human rights and would cripple attempts of the United States to cooperate with other nations for our mutual defense. In the interest both of car own domestic well-being and in the furtherance of a constructive foreign pey, this resolution should not be adopted.

Mr. MASLOW. Perhaps I ought to begin by identifying myself and L.V organization.

Senator DIRKSEN. That is right.

Mr. MASLOW. My name is Will Maslow. I am general counsel of the American Jewish Congress. The American Jewish Congress is anational organization which has been in existence since 1919. It was ginally founded by such distinguished Americans as Supreme Court Justice Brandeis, Federal Judge Julian Mack, and Rabbi Stephen S. Wise.

One of the purposes of the American Jewish Congress is to promote spect and observance of fundamental human rights and freedoms, d accordingly, we have been much concerned with the role of the ited States in the United Nations to promote that respect.

I find, Senator, that my organization's views are in sharp conflict th the witnesses who preceded me. I submit to you, sir, that t only is the Bricker resolution unnecessary to the protection of American rights but that its adoption would be a catastrophe. Perhaps I can support those statements.

If you examine the statement of Senator Bricker made before this amittee last year you will see that the primary motivation of the nator was the so-called human-rights treaties, and he states in so any words, and I am quoting from his statement of May 21, 1952: The °C. N. draft Covenant on Human Rights is a perfect illustration of the cestic legislation by treaty which Senate Joint Resolution 130 is designed to

Senate Joint Resolution 130 was last year's version of this resolution. ator Bricker then goes on to state:

The use of the treaty as an instrument of domestic legislation is a U. N. vation.