of alleged violations of internationally recognized human rights by appropriate international organizations, including the International Committee of the Red Cross and any body acting under the authority of the United Nations or of the Organization of American States.

"(d) For purposes of this section, 'security assistance' means assistance under chapter 2 (military assistance) or chapter 4 (security supporting assistance) of this part, assistance under part V (Indochina Postwar Reconstruction) or part VI (Middle East Peace) of this Act, sales under the Foreign Military Sales Act, or assistance for public safety under this or any other Act. 9925

Whereas the foregoing law merely expressed the sense of Congess that there should be an aid cut-off, a law adopted in 1975 makes the aid cut-off mandatory. It reads as follows:

Sec.310. Part I of the Foreign Assistance Act of 1961 is amended by inserting immediately after section 115 the following new section:

"Sec. 116. Human Rights.-(a) No assistance may be provided under this part to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.

“(b) In determining whether this standard is being met with regard to funds allocated under this part, the Committee on Foreign Relations of the Senate or the Committee on International Relations of the House of Representatives may require the Administrator primarily responsible for administering part I of this Act to submit in writing information demonstrating that such assistance will directly benefit the needy people in such country, together with a detailed explanation of the assistance to be provided (including the dollar amounts of such assistance) and an explanation of how such assistance will directly benefit the needy people in such country. If either committee or either House of Congress disagrees with the Administrator's justification it may initiate action to terminate assistance to any country by a concurrent resolution under section 617 of this Act.

"(c) In determining whether or not a government falls within the provisions of subsection (a), consideration shall be given to the extent of cooperation of such government in permitting an unimpeded investigation of alleged violations of internationally recognized human rights by appropriate international organizations, including the International Committee of the Red Cross, or groups or persons acting under the authority of the United Nations or of the Organization of American States.

"(d) The President shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, in the annual presentation materials on proposed economic development

assistance programs, a full and complete report regarding the steps he has taken to carry out the provisions of this section.". 26

By adopting these laws Congress has determined to promote a U.S. foreign policy that assigns a relatively high priority to human rights and to efforts. designed to ensure that they are not violated. A policy that results in the cut-off of U.S. aid to governments engaging in large-scale violations of human rights will of course not always bring about the end of such violations. But it can ensure that the U.S. will not be identified with those forces in a particular country which commit violations of human rights. These policies no doubt reflect the belief of Congress that, whatever their short-term political costs, the U.S. has an overriding long-term interest in a world in which human rights are respected.

It is interesting to note, in this connection, that the Congressional legislation speaks of "a consistent pattern of gross violations of internationally recognized human rights." The reader will recall that this wording corresponds substantially to the language of ECOSOC Resolution 1503 which established the new UN procedures for dealing with individual complaints. 27 This formulation reflects a conscious effort on the part of Congress to demonstrate that its policies are designed to promote the principles upon which Resolution 1503 is based and to anticipate charges by the affected states that these policies amount to illegal U.S. intervention into their domestic affairs. This concern is reinforced by the emphasis Congress places in the legislation on the need for impartial international investigations of charges alleging violations of human rights.

It is also highly significant that the Congress speaks of "internationally recognized human rights." What we have here is federal legislative acceptance of the proposition that such rights exist under international law and that states have an obligation not to violate them. The willingness of the U.S. Congress to give legislative expression to this proposition and to give active support to the enforcement of "international" human rights efforts signals a new era of Congressional concern for and awareness of the human rights needs of the international community. This concern was also reflected, for example, in the decision by the Congress to reduce security assistance to South Korea for the fiscal year 1975 "until the President submits a report to the Congress . . . stating that the government of South Korea is making substantial progress in the observance of internationally recognized standards of human rights." 28.

It can only be hoped that the momentum of Congressional interest in international human rights will not be slowed by the 1975 UN General Assembly resolution characterizing Zionism as racial discrimination. Thist action by the UN is, of course, a shocking public display by various UN Member States of their willingness to sell out the struggle against genuine racial discrimination as it is practiced in southern Africa, for example, to gain some short term propaganda victories. But since this attitude is typical of many governments who have never been known as advocates of human rights, it

would not serve U.S. interests to withdraw from the struggle for international human rights and let these nations shape and determine future policies and actions in this field.

IV. CONCLUSION

The preceding discussion indicates that the U.S. has in the past few years begun to support international human rights efforts with much more vigor than at any time following World War II. This does not mean that U.S. foreign policy currently assigns to international human rights issues an overriding or even a very high priority. It is clear, however, that the human rights aspects of foreign policy issues are today finally receiving some attention from our policy makers. How much importance is assigned to these aspects is difficult to say at this point. The Congress seems to be pressing the Executive Branch to assign higher priorities to international human rights considerations than it is currently doing. The Executive Branch, in turn, seems to be concerned that too vigorous a human rights policy will have an adverse effect on other U.S. military and foreign policy interests. The Executive Branch also favors greater tact or "quiet diplomacy" in pursuing human rights objectives and has doubts about the efficacy of congressional policies involving aid cut-offs and public condemnations. It will no doubt take some time before these conflicting approaches are reconciled and a coherent U.S. foreign policy on human rights is developed.

One of the basic prerequisites for such a policy is still missing. It has to do with the failure of the U.S. thus far to ratify the major international human rights instruments. Until the Senate indicates its willingness to give its advice and consent to our ratification of some of these treaties, 28 a the U.S. will not be able to pursue a truly effective international human rights policy. For one thing, the U.S. is politically and strategically vulnerable in the UN and other international bodies when it accuses other states of violating human rights. Thus, in reply to U.S. charges that Soviet emigration policies violate fundamental human rights, the Soviet Union loudly proclaimed that these measures are not in conflict with the International Covenant on Civil and Political Rights, which has been ratified by the Soviet Union but not by the United States. It matters not that the Soviet claim is subject to serious doubt; what matters is that the United States is hardly in a strong position to challenge the interpretation of a treaty to which it is not a party. Moreover, no assurances to the contrary or refined constitutional explanations can dispel the propagandistically very effective contention that the failure of the U.S. to ratify human rights treaties demonstates that it does not guarantee the rights they proclaim.

But the failure of the U.S. to ratify any of the major UN human rights instruments affects not only our human rights image and propaganda stance. In the long run, its consequences are much more detrimental. Nonparticipation by the U.S. in these treaties prevents us from playing a role in their

interpretation and application. This means that, if we continue this policy, the United States will not have a significant impact in shaping the international human rights law of the future. 29 And, what is more important, many of the nations that will be shaping it are not particularly known for their commitment to libertarian ideals.

30

Moreover, the failure of the U.S. to ratify these instruments also helps explain the low level of understanding which American adults and young people have regarding international human rights efforts and problems. The structuring and promotion of human rights education having a global perspective or component is consequently important as well as difficult in this country. It is clear, however, that the effort must be made, lest our young people be denied both the opportunity to understand one of the most critical problems of our times and the ability to contribute to its solution.

Chapter Five: FOOTNOTES

1. See L.B. Sohn, "A Short History of United Nations Documents on Human Rights," in The United Nations and Human Rights, p. 39, at pp. 44-59 (Report of the Comm'n to Study the Organization of Peace, 1968); J.F. Green, The United Nations and Human Rights, pp. 13-15, 59-65 (Washington, D.C.: The Brookings Institution, 1956). See generally, V. Van Dyke, Human Rights in the United States and World Community (Oxford Univ. Press, 1970). Sohn, supra at p. 47.

2.

3.

On this subject generally, see L. Henkin, Foreign Affairs and the Constitution, pp. 129-71 (Mineola, N.Y.: Foundation Press, 1972).

4.

5.

6.

7.

See Oyoma v. California, 332 U.S. 633, at 649-50 (Black) and 673 (Murphy) (1948).
Id. at 649-50.

217 P.2d 481 (Calif. Dist. Ct. App. 1950).

Congressional Record, vol. 98, p. 911 (1952). Similar warnings were sounded in the debate on the Sei Fujii case that Senator Donnell (Missouri) initiated in the U.S. Senate only four days after the case was decided. He too pointed to the dangers inherent in the treaty-making power that this case exemplified. Congressional Record, vol. 96, pp. 5993-6000 (1950).

8.

9.

Sei Fujii v. California, 38 Cal.2d 718, 242 P.2d 617 (1952).

On the political aspects of the Sei Fujii case, see C. Fairman, "Finis to Fujii," American Journal of International Law, vol. 46, p. 682 (1952). See also O. Schachter, "The Charter and the Constitution: The Human Rights Provisions in American Law," Vanderbilt Law Review, vol. 4, p. 643 (1943); B. Schlüter, "The Domestic Status of the Human Rights Clauses of the United Nations Charter," California Law Review, vol. 61, p. 110, (1973).

10.

11.

Congressional Record, vol. 98, pp. 907-08 (1952).

The different drafts are reproduced in "Report on the 1957 Bricker Amendment," Record of the Ass'n of the Bar of the City of N.Y., vol. 12, p. 320, at pp. 343-46 (1957).

12.

See Secretary of State John Foster Dulles' Statement, Hearings on S.J. Res. 1 and S.J. Res. 43 Before a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong., 1st Sess., p. 825 (1953), reproduced in L. Sohn & T. Buergenthal, International Protection of Human Rights, p. 957, at p. 959 (1973).

13. The U.S. Government Statement on this subject can be found in M. Whiteman, Digest of International Law, vol. 13, pp. 667-69 (U.S. Dept. of State, 1968).

14.

15.

See, e.g., Henkin, supra note 3, at pp. 154-56.

President's Commission for the Observance of Human Rights Year 1968, A Report in Support of the Treatymaking Power of the United States in Human Rights Matters, p. 1 (Washington, D.C., 1969), reproduced in International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy, (Hearings before the Subcomm. on International Organizations and Movements of the Comm. on Foreign Affairs, House of Representatives, 93d Cong., 1st Sess.), p. 731, at 735 (1973).

16. See Report on International Convention on the Prevention and Punishment of Crime of Genocide, Ex. Rep. No. 93-5, 93d Cong., 1st Sess., pp. 14-17, March 6, 1973). That treaty was first submitted to the U.S. Senate by President Truman in 1949; it was resubmitted by President Nixon in 1970, but has still not received the required advice and consent of the full Senate. See generally, B. Bryant & R. Jones, "The United States and the 1948 Genocide Convention," Harvard International Law Journal, vol. 16, p. 683, (1975); Sohn & Buergenthal, supra note 12, at pp. 979-92.

17.

18.

19.

Green, supra note 1, at p. 121. See also the discussion in Chapter IV, pp. 75-78, supra.
See International Protection of Human Rights, supra note 15.

While these issues have come up in prior congressional hearings, usually in the context of hearings on specific human rights treaties or the treaty-making power in general, they have tended to be almost totally obscured by concerns relating to the constitutionality of U.S. participation in international human rights agreements.