I turn now to the question of reservations, dealing first with the State Department's reservations, and then with suggestions of our own. The State Department has set forth reservations in each of the four covenants with regard to the restrictions on freedom of speech and press permitted by the covenants in order to punish by law the dissemination of ideas based on racial superiority or hatred, or propaganda for war or racism, or incitement to such acts. (Elimination of Racial Discrimination, Art. 4 (a) and (b); Economic, Social, and Cultural Rights, Art. 5(1); Civil and Political Rights, Art. 5(1), Art. 20; and American Convention, Art. 13.) We agree. Freedom House notes that the State Department's reservations reject specific restrictions on the freedom of individuals and agencies to convey information. There should be the further statement that under the United States Constitution the media of communication which are independent of government, even though regulated (as in the case of radio and television), cannot be assigned any editorial responsibilities by the government, and the media cannot be punished for political publications or broadcasts except within the very narrow limits defined by the Supreme Court as consistent with the First Amendment. In some instances, moreover, the State Department's reservations with regard to matters of free expression do not go far enough. The American Convention (Art. 13, 14, 15 and 16) permits broad exceptions to the rights of assembly and association and permits government censorship and punishment of expression which would be entirely inconsistent with the American Constitution. There should be a reservation for the American Convention identical to that which the State Department recommends with regard to the other three covenants. These reservations call the attention of the other signatories to the fact that the protection for free expression set forth in these covenants is less than that provided by the United States Constitution. We concur in other State Department reservations, specifically: the Federal Government's inability to commit state and local governments to specific acts, a reservation made necessary by Art. 28 of the Economic, Social, and Cultural Rights Covenant; the possible Constitutional limitation on the power of the United States to deal with certain private acts of racial discrimination (see Art. 2, 3, 5 of the Racial Discrimination Convention); the assertion of the right of all individuals to own property alone as well as in association with others, and not to be arbitrarily deprived of property (see Art. 2 and 25 of the Economic, Social, and Cultural Rights Covenant). We disagree with the reservation of the right to impose capital punishment. The covenants do not call for abolishing capital punishment. They seek rather to restrict its use to only the more heinous crimes, while implicitly supporting the end of the practice. There is no need for the United States to align this country actively with those diminishing numbers of states that impose capital punishment. Nor should the United States assert a right to execute pregnant women, persons under 18 years of age or over 70, or those guilty of "political offenses or related common crimes." (See Art. 6, Civil and Political Rights and Art. 4(2) American Convention.) Nor should the State Department object to the fact that the Civil and Political Rights Covenant gives individuals greater rights with regard to compensation for unlawful arrest and protection against ex post facto criminal prosecutions than is provided under American Constitutional law (see Civil and Political Rights, Art. 9(5) and 15(1)). Since the covenant is not self-executing, why should the United States not agree to try to take such steps as may be within its authority in order to enlarge these procedural protections? In addition to the State Department's reservations, and our recommendations above to strengthen them, Freedom House would add reservations to the following Articles on the Covenant on Civil and Political Rights. In doing so, we do not suggest that the covenant should be renegotiated, but rather we recommend that the Senate Resolution consenting to the covenant should make clear that the United States regards the covenant as deficient in certain respects and intends to work for raising the level of human rights above those which the covenant provides. Article 4 states that "in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed", some civil rights may be derogated. At a minimum, the "emergency" is defined too broadly in the Article. Moreover, the failure of the Article to except from its terms the rights guaranteed in Articles 14 (Criminal Prosecutions), 17 (The Right of Privacy), 19 (Freedom of Expression), and 25 (Participation in Public Affairs, Including the Right to Vote and to Engage in Public Service) leaves these rights subject to abrogation upon the declaration of a "public emergency" which, in the view of the government, threatens "the life of a nation." set forth in the international declarations and agreements in this field (human rights and fundamental freedoms), including, inter alia, the International Covenants on Human Rights, by which they may be bound." Human rights will be a major topic of discussion at the review conference next November. Citizens groups like the U.S. Helsinki Watch Committee have been studying the U.S. compliance record to foster implementation of the Accords. We believe it imperative for the U.S. to make major strides in this direction over the next year, not only because we have a moral obligation to do so, but also to strengthen the United States in its efforts to aid the victims of human rights abuses in the other Helsinki nations. President Carter signed the Covenants the day after the last Helsinki review conference opened in Belgrade in 1977. This forestalled questions as to the sincerity of the United States' concern for human rights which might have resulted from our failure to accede to the Covenants. If we have not ratified, however, by the beginning of the Madrid conference the United States will be extremely vulnerable to criticism. Consider, as an example of what our Ambassador to the Madrid conference will face, the following summary of a telling attack delivered by the Soviet delegate to the U.N. Human Rights Commission in 1966: "An objective analysis of the political orientation of the proposal so ardently supported by the United States and its allies soon revealed that the proposal was designed to give world public opinion the impression of active participation in the cause of human rights by States which in practice obstinately refused to fulfill their obligations under the multilateral international conventions in the field of human rights drawn up under the auspices of the U.N. and its Specialized Agencies. The U.S. representative had admitted that the U.S. had lagged behind in that sphere. That was an understatement; he would mention some of the conventions which the U.S. had not ratified." The Soviet delegate proceeded to cite examples, including the human rights instruments which are the subject of these hearings. While this argument-coming from a nation which is a party to the Covenants, the Accords, and a number of other human rights agreements but has failed to adhere to them in practice-may be called hypocritical, it could nevertheless blunt the effectiveness of U.S. human rights efforts. This is all the more true because 21 of the 35 Helsinki states, including all of the Warsaw Pact nations, have ratified the Covenants. The U.S. Helsinki Watch Committee therefore respectfully requests that the Covenants be ratified before November of 1980. We also request that the President and the Senate approve the Optional Protocol to the Civil and Political Rights Covenant, which allows individuals to appeal to the Human Rights Committee. The Committee's jurisdiction has been used already in a case involving Uruguay, but we of course have not been able to participate in the consideration of this case, or even in the election of Committee members. The United States has a domestic record on human rights in which it has reason to take pride. It has acted unilaterally on several occasions since the beginning of the Carter Administration to aid those abroad suffering the excesses of repressive regimes. The time has now come for the United States to bind itself to the other nations of the world in furtherance of the human rights cause. Senator PELL. Thank you very much, Mr. Carey. BIOGRAPHICAL SKETCH OF MORTON H. SKLAR, CHAIR, WASHINGTON PRESENT RESPONSIBILITIES Employment Project Director, Center for National Policy Review, a public interest research and advocacy law firm in Washington. Faculty of Law, Catholic University Law School, teaching courses in Public International Law, and International Organizations and Human Rights, on an adjunct basis. Fellow, Legal Services Corporation, doing an analysis of the poverty and civil rights impacts of the Federal government's employment assistance programs, including the Comprehensive Employment and Training Act. Chair, Subcommittee on Human Rights Education, American Bar Association (under the International Law Section's Human Rights Committee). available only to countries which ratify the agreements. This would enable the U.S. to "focus the international spotlight on those places where violations of human rights are endemic." The monitoring of the Helsinki Accords by this and other nations, said Dean Redlich, provides a useful precedent. Freedom House urged strengthening some reservations recommended to the Senate by the State Department. It objected to restrictions on freedom of speech and press permitted in all four covenants in order to punish by law the dissemination of ideas based on racial superiority, war propaganda or incitement to such acts. Freedom House urged the U.S. also to declare that media of communication which are independent of government "cannot be assigned editorial responsibilities by the government,” and cannot be punished for “political publications or broadcasts except within the very narrow limits defined by the Supreme Court as consistent with the First Amendment." The organization concurred in other State Department reservations, specifically: the Federal Government's inability to commit state and local governments to specific acts; the constitutional limitation on the U.S. government to deal with certain private acts of racial discrimination; and assertion of the right of all individuals to own private property. Freedom House disagreed with the State Department's reservation of the right to impose capital punishment. The covenants do not call for abolishing capital punishment. Nor should the U.S. assert a right to execute pregnant women, persons under 18 or over 70, or those guilty of "political offenses or related common crimes," said Dean Redlich. Where the covenants provide rights not found in existing U.S. law, this country, said Freedom House, should “welcome these higher standards and commit itself to trying to achieve them." One such higher standard would provide assurances as to "the equal rights of men and women to the enjoyment of all economic, social and cultural rights" set forth in the covenant. President Carter transmitted to the Senate February 23, 1978 the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the American Convention on Human Rights. The first three agreements were approved by the United Nations General Assembly in 1965–66, and the fourth by the Organization of American States in 1969. Some 98 nations have ratified the Convention on Racial Discrimination, and about 50 countries have approved the other two U.N. agreements. Freedom House, in its 38th year, is a national nonprofit, nongovernmental organization that seeks to strengthen free institutions at home and abroad. Programs include the Comparative Survey of Freedom that examines the level of political rights and civil liberties in every country. Senator PELL. Thank you Dean Redlich. Mr. Carey, we would be happy to hear from you. [Mr. Carey's biographical sketch follows:] VITAE Carey, John, lawyer; b. Phila., June 11, 1924; a. Henry Reginald and Margaret Howell (Bacon) C.; grad. Milton Acad., 1942; B.A., Yale, 1947; LL.B., Harvard, 1949; LL.M. in Internat. Law, N. Y.U., 1965, m. Patricia F. Frank, Feb. 24, 1951; children-Henry Frank, John Douglas, Jennifer Patricia. Admitted to Pa. bar, 1950, N. Y. bar, 1957; practiced in Phila., 1949-55, N.Y.C., 1956—; asst. dist. atty., Phila., 1952-54; cons. spl. com. fed. loyalty-security program Assn. Bar City N.Y., 1955-56; partner firm Coudert Bros., 1961-. Dir., Walker & Co. Mem. Faculty N.Y.U. Law Sch., 1966. Mem. city council, Rye, N. Y., 1964-68, 72-74, mayor, 1974-. Alternate mem. UN Subcommn. on Prevention Discrimination and Protection of Minorities, 1966-; alternate U.S. rep. UN Human Rights Commn., 1968. Trustee, Little Harbor Chapel, Portsmouth, N.H. Mem. Am., Internat., N. Y. State, Phila. bar assns., Assn. Bar City N. Y. (rep. at UN), Am. Soc. Internat. Law, Council on Fgn. Relations, Phi Beta Kappa. Author: UN Protection of Civil and Political Rights, 1970. Home: 860 Forest Ave, Rye NY 10580. Office: 200 Park Ave, New York City, NY 10017 STATEMENT OF JOHN CAREY, REPRESENTING HELSINKI WATCH COMMITTEE, NEW YORK, N.Y. Mr. CAREY. Thank you, Senator Pell. I am here on behalf of the Helsinki Watch Committee. We have a prepared statement which is available for insertion into the record. Since I understand it will be inserted in full, I will be very brief and merely summarize it and make a few other impromptu remarks. Senator PELL. That will be appreciated. Mr. CAREY. The Helsinki Watch Committee urges the ratification of the two international human rights covenants. We also urge that the President sign and send to the Senate and that the Senate give advice and consent to ratification of the optional Protocol to the Civil and Political Rights Covenant, which is the third instrument adopted, all at the same time, by the General Assembly in 1966. It, too, is now in effect. It is under this Optional Protocol that the Uruguayan case, referred to by Mr. Justice Newman a few moments ago, has come fully through the process of the Human Rights Committee. I would like to cite some three United Nations documents for the record in which information on that case can be found since, Senator Pell, you made an inquiry of Justice Newman as to enforcement in this area, and he responded by citing this case. So I think it would be helpful to have the citations. The case itself appears at United Nations document A-34-40, annex VII. A Uruguayan Government response to this case appears at A-C334-3, and a reply to the Uruguayan response under date of November 1, 1979 can be found under the citation of A-C3-34-6. This last document is presented by the permanent representative of Panama. It consists of a letter addressed to the Minister of Foreign Affairs of Panama from Mexico City by a Uruguayan national. This perhaps shows that when it comes to enforcement of the International Covenant on Civil and Political Rights, there do not seem to be any clear-cut blocs at work for or against a particular decision. I also would like to stress, referring to our formal statement, the fact that in November 1980, the second followup conference on the Helsinski Accords will be conducted in Madrid. The Helsinki Watch Committee urges that the covenants and the Optional Protocol be ratified before November 1980. President Carter signed the covenants the day after the last Helsinki Review Conference opened in Belgrade in 1977. This postponed all questions as to the sincerity of the United States concern for human rights which might have resulted from our failure to accede to the covenants. If we have not ratified, however, by the beginning of the Madrid Conference next fall, the United States will be extremely vulnerable to criticism. Consider, for example, what our ambassador to the Madrid conference will face. The following is a summary of a telling attack delivered by the Soviet delegate to the United Nations Human Rights Commission in 1966. Mr. Chairman, in our formal statement is quoted an official summary of the attack on the United States which was levelled by the Soviet representative on the grounds of U.S. nonratification of human rights covenants. In the face of this general acceptance of these standards, our Helsinki commitments are being violated by not making these universally accepted human rights standards part of our own system of laws through ratification. The second point has been talked about before and is pretty selfevident, that is that we will be subject to a considerable amount of criticism in the international community and at Helsinki followup conferences because of the failure to ratify. I would like to stress one of the elements of that embarrassment and that difficulty that arises because of the criticism. Our efforts abroad to achieve human rights and a greater commitment to the principles of freedom and democracy and human dignity will be very severely damaged. Obtaining human rights observance abroad is not just part of our moral values. It is vitally connected to our national self-interest in securing a higher level of commitment and practice from other nations in support of the basic principles that underlie the human rights treaties: Rights of free speech, equal protection under laws, right of assembly, fair trial, economic and job security all the rights that are the basic cornerstones of our own democratic system. Our country and our system lose when other nations derogate from these principles. The ability of our own values to survive is damaged when these values are not observed by other governments. But we are in a very poor position to press for these values abroad, to alert countries of their violations and to suggest improvements so long as we ourselves are seen to be in basic noncompliance. This is how we are seen because of the act of failure to ratify these human rights treaties. Our efforts with others also are undercut by our failure to ratify because until we become a party to these agreements we can have little or no voice to help shape and improve the international procedures used to monitor and assure compliance. We condemn the international procedures as inadequate, as, for example, as being too slow in dealing with complaints and cases. But when the principal enforcement unit for the covenant, the Human Rights Committee, was first meeting in New York and Geneva to organize its procedures, as it debated questions like the time limits for dealing with cases, and the complaint procedures, the U.S. representative was sitting by the sidelines. We cannot influence what happens when we are sitting by the sidelines in that way. Every American loses when a citizen of another country faces repression and a loss of human rights. We lose because we see human dignity trampled in the dust, and a part of us is buried in the process. We lose because our ability to maintain the values for ourselves ultimately is dependent on the willingness of other nations to support these principles in their own right. We cannot preserve freedom and human dignity alone. We must be part of a worldwide effort and a joint commitment of all nations to be kept to that high mark. We are not fully participating in that effort without ratification. As to the last point which I think is very vital, we should be proud of what we have achieved as a Nation. Yet, it is almost our very idealism that seems to make us reluctant to participate in the human rights treaties. We seem afraid to be criticized for the remaining deficiencies that we do have, and so we shy away from participation even though |