And it is perfectly appropriate, if this lang if Mr. Smithey or any others believe that th ciently precise, or not sufficiently comprehe that is sufficiently precise and comprehens draft covenant, because I am sure that thos sentatives of the United States who are charg of negotiating this article are fully aware of

I know I have discussed this problem wit has maintained that this federal clause is es States mission would never accept a treaty

Mr. SMITHEY. Mr. Maslow, I do not car but I do want to read into the record at t of the Covenant on Human Rights as it v on the hearings on Senate Joint Resolu article II and I think you are familiar v tion 1 of article II says:

In the case of a state of emergency official or in the case of public disaster, a state may extent strictly limited by the exigencies of under article I, paragraph 1, and part II of t And it goes on to say in section 2:

No derogation from articles III, IV, V (par may be made under this provision.

Now, one of the articles that is exce which says, in section 1:

No one shall be subjected to arbitrary a Now, in the event of an interpret Rights and the Federal state clause do you think would prevail? Wou the Covenant on Human Rights Rights, have the right to derogate vision which provides "No one sh detention"?

Mr. MASLOW. I am glad you r come to it. Senator Bricker me called derogation clause.

Mr. SMITHEY. That is right. Mr. MASLOW. He refers to it the draft covenant is article II. a misapprehension, and perhap derogation clause. The Unit along with 60 other nations, t out the world. We are justly justly proud of our Constitu the standards of countries all As you may know, there i which can be suspended in t right of habeas corpus, and actual invasion. Other cou our freedoms, and many o countries, in time of emer: reduce or suspend constitu

'raft Covafts by

n Rights venant on Social, and ke Union of Le Covenant. e opened for afted by the embly. Each and will apply To the Universal ty on December as a declaration

de Commission on the Commission: ' sand of the Cove esigned to acquaint y for their preservalay when totalitarian nists by also by the for the promotion of lly if our free way of

any provisions which deof communism, socialism, been proposed, the United iet Union and its satellites ... In its approach to vil and political articles, the tion and by existing statutes ntive branches of the Federal

ICAL RIGHTS

in the Covenant on Civil and rights which have been included Salered by the Commission in 1947. Commission and its Drafting Comas at its session in New York this are well known in American tra», protection against torture, slavery, freedom to leave a country, freedom and public hearing by an independent ed innocent until proved guilty, pro1 of religion, expression, assembly and

SOCIALIST REPUBLICS

ssion, the Union of Soviet Socialist Res of the Covenant but these efforts were ple, in the consideration of the article SS. R. proposed that this freedom be limited U.S. S. R. has repeatedly sought to disthat it is descriptive of the Communist the U. S. S. R. was obviously seeking by hat it could later claim that this freedom of the Soviet Constitution which allows the Sporting the Communist State. This effort

el and Political Rights. Political Rights.

on freedom of expression in the ibers voting for it, the U. S. S. R. and. The U. S. S. R. submitted a provisions of the Covenant on freeamendment was also rejected, with the Commission voting for the amend

ant calling for a fair and public hearunal, the U. S. S. R. proposed the elimamendment it submitted to the Comrejected this amendment.

REPORTING PROCEDURES

ent time at its 1952 session to review the l and political rights and economic, social, sion accordingly did not review the complaint essions with respect to the consideration of on civil and political rights. The draft Coveor the filing of complaints by countries ratifying may be filed only against countries which have Commission has rejected proposals submitted by Sion to authorize individuals, groups, or nongovcomplaints. These issues will no doubt be conssion at its session next year. The Commission at that time the reporting procedure proposed for Social, and Cultural Rights."

LCONOMIC, SOCIAL, AND CULTURAL RIGHTS

Economic, Social, and Cultural Rights sets forth provinent, conditions of work, trade-unions, social security, children, young persons, the family, food, clothing, houshealth, education, science, and culture.'

DIFFERENCES BETWEEN TWO COVENANTS

venant on Economic, Social, and Cultural Rights, the Comnat the provisions of this Covenant differed in a number of ovenant on Civil and Political Rights. These differences were venant on Economic, Social, and Cultural Rights in a number mie, social, and cultural rights were recognized as objectives progressively." In the case of the civil and political rights, ng the Covenant will be under an obligation to take necessary feet to these rights." A much longer period of time is clearly Ander the Covenant on Economic, Social, and Cultural Rights for ⚫nt of the objectives of this Covenant. The term "rights" is used il and political articles and the economic, social, and cultural artiin is used, however, in two different senses. The civil and political ked upon as "rights" to be given effect immediately. The economic . cultural rights, although recognized as "rights," are looked upon as ard which countries ratifying the Covenant would undertake to strive eve these objectives to the extent permitted by available resources. was recognized that economic, social, and cultural rights were to be by many means and methods, private as well as public, and not solely legislation. Article 2 of the Covenant on Economic, Social, and Cultural expressly states that the rights recognized in that Covenant are to be by other means" as well as by legislation. The members of the Comacknowledged that the reference to "other means" was a recognition by that the rights set forth in this Covenant could be achieved through private ell as governmental action. The obligation of a country ratifying this Cove

--> 12. par. 1, of Covenant on Civil and Political Rights.

beles 20 to 46 of Covenant on Civil and Political Rights.

les 17 to 26 of Covenant on Economic, Social, and Cultural Rights.

Pes 6 to 16 of Covenant on Economic, Social, and Cultural Rights.

le 2, par. 1, of Covenant on Economic, Social, and Cultural Rights.

--- 2. par. 2, of Covenant on Civil and Political 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 ir 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 11 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,

11 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 163 session. The U. S. delegation has insisted on the inclusion of such an artile in the Covenants since the earliest U. N. consideration of the Covenant 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, won'd not be altered by the proposed Covenants on Human Rights.

In ler the proposed Federal-State article, the United States, upon its ratificat on of a Covenant, would undertake the same obligations as other ratifying antries with respect to rights set forth in that Covenant which fall within * constitutional jurisdiction of the Federal Government. With respect to provisions which are wholly or in part within the jurisdiction of the several Sates, 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 Covemust “shall not operate so as to bring within the jurisdiction of the Federal anthority of a Federal State . . . any of the matters referred to in this CoveLant 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 pereased. The proposal for a Federal-State article makes it clear that the dogations undertaken by the United States under the Covenant would be Sted to matters which under the Constitution of the United States are within the Federal jurisdiction independent of the coming into force of the Covenant f.

SELF-DETERMINATION

The Commision approved three paragraphs of an article on self-determination fernelusion in both Covenants. The first two paragraphs were along the lines anguage adopted at the sixth session of the General Assembly on February 162 The third paragraph was added by the Commission. The United States Doration voted for the first two paragraphs but opposed the third paragraph. I voting for the first two paragraphs, the United States delegation explained that is, 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 Le 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 a.. their territories and to respect the maintenance of that right in other countries E conformity with the provisions of the United Nations Charter. The third paragraph, which the U. S. delegation opposed, provides that "the right of the ples to self-determination shall also include permanent sovereignty over eir natural wealth and resources. In no case may a people be deprived of **own means of subsistence on the grounds of any rights that may be claimed 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 f the United Nations, recognition of the inherent dignity and of the equal and alienable rights of all members of the human family is the foundation of fredom, justice, and peace in the world,

RECOGNIZING that these rights are derived from the inherent dignity of the Lan person,

RECOGNIZING that, in accordance with the Universal Declaration of Human rights, the ideal of free men enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social, and cultural rights,

CONSIDERING the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, REALIZING that the individual, having duties to other individuals and to the community to which he belongs, is under responsibility to strive for the promotion and observance of the rights recognized in this Covenant,

Agree upon the following articles:

PART 1

Article 1 [Self-Determination]

[The Commission on Human Rights drafted this article at its 1952 Session. The Commission did not have sufficient time to consider whether the provisions of Parts II and IV should apply to this Article 1.]

1. 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.

2. All States, including those having responsibility for the administration of non-self-governing and trust territories and those controlling in whatsoever manner the exercise of that right by another people, shall promote the realization of that right in all their territories, and shall respect the maintenance of that right in other States, in conformity with the provisions of the United Nations Charter.

3. 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.

PART II [GENERAL PROVISIONS]

Article 2

1. Each State Party hereto undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in this Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each 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 necessary to give effect to the rights recognized in this Covenant.

3. Each State Party hereto undertakes:

(a) To insure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To develop the possibilities of judicial remedy and to ensure that any person claiming such a remedy shall have his right, thereto determined by competent authorities, political, administrative or judicial:

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties hereto may take measures derogating from their obligations under this Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from Articles 3, 4, 5 (paragraphs 1 and 2), 7, 11, 12 and 13 may be made under this provision.