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E. Articles against the Genocide Convention-Continued

Human Rights and International Law, by Mr. Carl B. Rix, from the

Congressional Record, July 26, 1949..
The Genocide Convention, by George A. Finch, from the American Jour-

nal of International Law, October 1949
Report of the Special Committee on Peace and Law Through the United

Nations, Committee on Foreign Relations hearings, U.S. Senate 81-2,
January 23, 24, and February 9, 1950, pp. 157–175...
The Genocide Convention

is Being Misrepresented, by George A. Finch,
Committee on Foreign Relations hearings, U.S. Senate, 81-2, January

23, 24, and February 9, 1950, pp. 213-221... Human Rights, by Carl B. Rix, Law Society of Massachusetts, January 5,

1950... Serious Problems Raised by the Genocide Convention, by Alfred J.

Schweppe, Committee on Foreign Relations hearings, March 10, 1971, The Genocide Convention-Why the Senate Should Refuse to Ratify It,

by Senator Sam J. Ervin, Committee on Foreign Relations hearing,

U.S. Senate, March 10, 1971, pp. 1-8 .....
Pitfalls of the Genocide Convention, by Orie L. Phillips and Eberhard P.

Deutsch, from the American Bar Association Journal, July 1970............
Treaties Should Not be Used to Enact Domestic Legislation, by Eberhard

P. Deutsch, Committee on Foreign Relations hearing, U.S. Senate,

March 10, 1971, pp. 23-81.
Drafting of the Genocide Treaty, by Alfred J. Schweppe, Committee on

Foreign Relations hearing, U.S. Senate, 92-1, March 10, 1971, pp. 58–64
U.S. Retreats in Negotiations, by Alfred J. Schweppe, Committee on

Foreign Relations hearing, U.S. Senate, 92-1, March 10, 1971, pp. 54-57
Unconstitutional Use of Treaty-Making Power, by Senator Jesse Helms of

North Carolina, Committee on Foreign Relations hearings, U.S. Senate,
95-1, May 16 and 24, 1977, pp. 104-106.......
The Genocide Convention-Today and Tomorrow, by Senator Jesse Helms

of North Carolina, International Convention on the Prevention and
Punishment of the Crime of Genocide, report, Committee on Foreign
Relations, U.S. Senate, 98–2, Exec. Rep. 98-50, September 24, 1984, pp.

42-57 ....
F. Articles For the Convention:

The Genocide Convention, report and recommendations of the Standing

Committee on World Order Through Law, American Bar Association,
from the Foreign Relations hearing, U.S. Senate, 92-1, March 10, 1971,

pp. 196-207....
Recommendation that the United States Ratify the Convention on the

Prevention and Punishment of the Crime of Genocide, from the Ameri-
can Bar Association, Committee on Foreign Relations hearing, U.S.
Senate, 92-1, March 10, 1971, pp. 147-185....
Time To Act on the Genocide Convention, by Arthur J. Goldberg and

Richard N. Gardner, from the American Bar Association Journal, Feb-
ruary 1972, Committee on Foreign Relations hearing, U.S. Senate 97-1,

December 3, 1981, pp. 72–78.
Analysis of Reservations and Understandings Expressed by Ratifying

States of Genocide Convention, supplied by Department of State, Com-
mittee on Foreign Relations hearings, U.Š. Senate, 95-1, May 24 and

26, 1977, pp. 37-38.
Prepared statement of Hebert J. Hansell, legal adviser, Department of

State, Committee on Foreign Relations hearings, U.S. Senate, 95-1,

May 24 and 26, 1977, pp. 26-28.
Prepared statement of Bruno V. Bitker, chairman, Committee on Interna-

tional Human Rights, Section on International Law, American Bar
Association, Committee on Foreign Relations hearings, U.S. Senate, 95-

1, May 24 and 26, 1977, pp. 48–52....
Prepared statement of Judge Thomas Buergenthal, Committee on For-

eign Relations hearing, U.S. Senate, 97-1, December 3, 1981, pp. 113

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F. Articles For the Convention-Continued

Prepared statement of John Norton Moore, vice chairman, Division of

Public International Law, Section of International Law; Thomas Buer-
genthal, chairman, Committee on International Human Rights, Section
on International Law; and Bruno Bitker, member, Standing Committee
on World Order Under Law, American Bar Association, Committee on
Foreign Relations hearing, U.S. Senate, 97-1, December 3, 1981, pp.

116-121.
Prepared statement of Hon. William Proximire, Committee on Foreign

Relations hearing, U.S. Senate, 97-1, December 3, 1981, pp. 17-20 ...
Ratification of the Convention on the Prevention and Punishment of the

Crime of Genocide, from the Conflict Analysis Center...
Prepared statement of Davis R. Robinson, Committee on Foreign Rela-

tions hearing, U.S. Senate, 98-2, September 12, 1984, pp. 47-48.

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CONSTITUTIONAL ISSUES RELATING TO THE

PROPOSED GENOCIDE CONVENTION

TUESDAY, FEBRUARY 26, 1985

U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, DC. The subcommittee met, pursuant to notice, at 9:30 a.m.,

in room 226 of the Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senator Grassley.

Staff present: Stephen J. Markman, chief counsel; Randall Rader, general counsel; Michael Loyd Chadwick, professional staff; Susan Bourne, clerk; Diane Stark, clerk.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. We are happy to welcome each of you here today. The Subcommittee on the Constitution is about to consider the constitutional implications of the proposed Genocide Convention. The American people expect the Senate to carefully examine any treaty before they adopt a resolution of ratification to ensure that it accords with the provisions of the U.S. Constitution.

In the words of George Washington, “It is important * * * that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres.* * *.

The Genocide Convention was adopted by the U.N. General Assembly on December 10, 1948, and submitted by President Harry S. Truman to the Senate for its "advice and consent” on June 16, 1949. Three months later, the American Bar Association's house of delegates convened on September 8, 1949 and issued the following resolutions:

Be it Resolved, That the suppression and punishment of genocide under an international convention to which it is proposed the United States shall be a party involves important constitutional questions; that the proposed Convention raises important fundamental questions but does not resolve them in a manner consistent with our form of government.

Therefore, be it resolved, that the Convention on Genocide now before the United States Senate be not approved as submitted.

The American Bar Association also released a special report prepared by its Special Committee on Peace and Law through the United Nations. It began with these words:

At a time in the history of the world when economic conditions, resulting largely from two devastating wars, are forcing nations to demand sacrifices of their individual freedoms to conform to Socialist states or alien ideologies, the same peoples are being asked to adjust themselves to revolutionary changes in their relations with their own people and the people of other nations. It does not seem to be enough that they should be led by example and teaching to new ways of conduct. Under international codes of conduct called treaties, they are to accept the changes by law. Government by treaties is the new concept.

Four months after the American Bar Association's special committee released its report, the Senate Foreign Relations Committee conducted 5 days of hearings through a subcommittee, which reported to the full committee that the Senate should not ratify the Convention unless four understandings and one declaration were adopted. The full committee declined to send the Convention to the Senate floor for a vote.

After laying idle on the Executive Calendar under the Eisenhower, Kennedy, and Johnson administrations, President Nixon resurrected the Convention and sent it to the Senate for ratification. Hearings were held in 1970 and again in 1971 by the Senate Foreign Relations Committee.

In 1973, the committee approved the Convention with three understandings and one declaration. It was later debated on the Senate floor, but failed to pass. The Convention then returned once again to the Executive Calendar.

Even though the American Bar Association had opposed ratification in the 1950 and 1971 hearings, in 1976 the ABA's house of delegates passed a resolution favoring ratification, containing reservations and declarations approved by the Foreign Relations Committee.

A year later, President Jimmy Carter recommended that the Senate ratify the Convention and hearings were held, but the Convention never reached the floor. In 1981, a public hearing was held on the Convention, but it was not reported out of committee.

Three years later, President Ronald Reagan, acting on the advice of the State Department, announced that his administration would "vigorously support, consistent with the U.S. Constitution the ratification of the Genocide Convention." Then, on October 10, 1984, the Convention was brought before the Senate for its consideration and, after a short debate, it was withdrawn.

As you can see, the Genocide Convention has been under consideration for 35 years. The main problem centers around two competing issues-our revulsion over the crime of genocide and our obligation to protect the sovereignty of the U.S. Constitution. While it is time to resolve these issues, we must not compromise our constitutional form of government in the process. Participation in world affairs need not, and should not, result in any diminution of liberty in the United States.

In an endeavor to examine the constitutional questions relating to the Genocide Convention, four distinguished legal scholars have accepted our invitation to testify before this subcommittee today and address the following six questions:

First, should the treaty-making power be used as the basis for enactment of domestic legislation in the United States?

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