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Senator HATCH. Without objection, we will put all prepared statements in the record.
Mr. DE SEIFE. I will be brief.
I wish if I could share Professor Moore's optimism, and I am always ill at ease when I am surrounded by eminent authorities in international and constitutional law, but I will say this: Even respected scholars can be wrong. I hate to be put in the position to have to take issue with just about everything Professor Moore has said. I do feel strongly, however, along with him, that any reservation, for that matter even understandings resulting in reservations, will nullify the meaning of the treaty. I agree with the United Kingdom's position on that.
My notion is a simple one, Mr. Chairman. No. 1, if the genocide treaty could even remotely achieve what it is supposed to achieve, if the genocide treaty was in the form in which Dr. Maktos originally wanted it to be, then I would plead for its ratification. John Maktos was one of my professors and, incidentally, I can only claim a little bit of reflected fame if any at all-I happened to be a student of Jessup, Lissitzyn, Maktos, and Mallinson, all of whom are very dear people and eminent authorities. Dr. Maktos felt that the Convention would be meaningless unless governments were made an indispensable party to genocide, No. 1.
No. 2, the treaty would be self-defeating once it did not include, in its definition as to the victims of genocide, members of an economic or political group.
It is a fact, Mr. Chairman, that Dr. Maktos, chairman of the American delegation, pushed for the ratification, by the signatories, of this treaty. It is under the leadership of the United States, as was pointed out earlier, that the Convention was adopted by the then members of the United Nations in 1948.
However, it should be pointed out that the end product of the Convention had very little to do with what was the initial sine qua non position under Dr. Maktos' leadership.
For purposes of distinguishing between treaties and conventions, I like to use the word contractual treaties which are the normal treaties that the founding fathers knew about which are the result of one-on-one negotiations between sovereigns, these negotiations having as an object external matters to their sovereignty and their relations among each other.
The conventions are a relatively modern development. Conventions, I call them legislative treaties for want of a better word. Of course, the United Nations is not a legislature. Be that as it may, bear in mind, Mr. Chairman, that this particular Convention, for instance, is written in five languages, each text of which is the official text of the Convention. In other words, if you are in China, it is not the English text that is controlling: it is the Chinese text. If you are in France, it is the French text that controls, and if you are in Spain or in a Spanish-speaking country, it is the Spanish text. If you are in England or in our country, it is the English text. I think people seem to think this Convention was written in English. It was discussed in English, but what we have is an amalgam of political philosophies that do not match what we believe are fundamental concepts under our Constitution.
Our Constitution is unique, Mr. Chairman. Our allies in France who have signed and ratified the Convention do not have the constitutional problems we have. As a lawyer, I can say that Congress has passed before either meaningless or vague laws and, what the heck, one more: we make more money. From a practical viewpoint, I know that if this treaty is ratified, I will use it when I have a client and I know how to use it.
As a lawyer, however, who believes strongly that the U.S. Constitution does not provide for the ratification of public relations treaties, I take issue with its proponents. It is not in the interest of the United States to act like other governments. In fact, the Constitution mandates us that the treaty is co-equal with any other fundamental law and, in fact, a treaty supersedes state law, it also supersedes all congressional legislation to the date of ratification. Of course, later congressional legislation will supersede the treaty.
It is not the first time we talk about Reid. The Supreme Court in Reid v. Covert, when the proponents allay our fears about a treaty doing away with constitutional guarantees, I suggest to you that this opinion is not the Constitution. When the Supreme Court speaks, it speaks for the moment because the next Supreme Court may very well reverse itself or change itself. We have seen it. Who is to say that the next Supreme Court is not going to allay someone else's fears.
Senator HATCH. We will have to recess for just a few moments. [Brief recess.]
Senator HATCH. I apologize. I had to chat with my senior colleague, Senator Garn. Since he is going up into space, I want to chat with him all I can. We have not been together as much as we really need to be, so I appreciate your indulgence in letting me have that time.
With respect to Reid, we have to remember that the Supreme Court decisions, while they may be explanatory of the Constitution, are not the Constitution itself. They change with the personnel of the Supreme Court.
The founding fathers, and I have some cites in my prepared statement, have had a very clear grasp of what the treaty-making power was all about, and they knew that the treaty power was to be reserved to the nation for those so called contract treaties, as I called them earlier. The founding fathers had absolutely no vision of conventions.
In conventions you have over 100 delegates from as many different nations working through commissions. You wind up with definitions which are compromises at best, and at best they mean what the person who reads them thinks they mean. I don't think this is
the way we ought to proceed. If you don't have a Genocide Convention which has a code which specifically and intelligibly defines the crimes which constitute genocide, if you do not have a court, an impartial present court, not the International Court of Justice, an impartial court which interprets the law impartially, and if you don't have a valid enforcement mechanism, I submit to you, Mr. Chairman, that the Genocide Convention is merely a public relations gimmick and our Constitution does not provide for that type of treaty. To elevate it to the rank of a treaty, I think, is not to help our cause for freedom and justice. It is to give a legitimate forum for more propaganda. To think, for one minute that because we ratified the Genocide Convention this is going to in any way change the tactics of Qaddafi or the Soviet Union or anyone else is not being terribly realistic, I suggest.
My advice, for what it is worth, is that we should not sign a treaty which by the admission of its own proponents, is merely a propaganda tool. We should sign only treaties that are treaties because treaties to us, in our peculiar system which is a unique system, are paramount to any other laws and equal to the Constitution. It is too serious a business to take lightly. If the Senate were to distinguish between treaties and conventions and say we will sign this because it does not mean anything to anybody anyway, that is fine, but that is not the way we should proceed.
We speak best by action. It is when the United States does not support dictators to the left or right who oppress their people. This is much more telling, Mr. Chairman, than us ratifying a Genocide Convention which most people don't know that much about because the people have been misinformed as to the real importance of the Genocide Convention. The text of the Genocide Convention is in fact what the Russian delegation would accept, and we were so eager to get them to sign that document that we bought their sine qua non condition, Mr. Chairman. It was a total unilateral abandonment by the United States of its original position as I quoted earlier statements to me by Dr. Maktos.
Therefore, I beseech the Senate, Mr. Chairman, not to sign a meaningless Convention. I think what this body ought to do on the other hand is by joint resolution let the President know that we do not wish to deal with countries that engage in genocide. We know what genocide means in the United States, but it does not necessarily mean what the Genocide Convention means. The way it is now, the Russians, the Kampucheans, or anyone else commit genocide with impunity. You can take Jewish citizens of a state and say they are political dissidents. That takes them out from under the
Convention. What are we going to engage in-more rhetoric? Rhetoric is not what it is all about. Our actions speak louder than words.
Thank you, Mr. Chairman.
[The prepared statement of Mr. de Seife and responses to written questions follow:)
PREPARED STATEMENT OF RODOLPHE J. A. DE SEIFE
The Genocide Convention adopted by the General Assembly of the United Nations on December 9, 1948 and signed by the United States of America, one of its prime movers, on December 11, 1948, has come up repeatedly before the United States Senate for ratification. Nothing has happened to change my view, then held as a law student, that the Convention should not be ratified in its present form, since President: Truman first submitted the convention in the Senate for its ratification. What was a student's researched and reasoned opinion has, over the past three and one half decades, been confirmed and reinforced by experience and academic research.
I wish to put to rest the notion that those who oppose ratification of the Genocide Convention somehow believe that genocide could ever be labeled as acceptable behavior by any government or individual in a civilized worlc. Plong with the eminent scholars who have supported the ratification of the Convention, several of whom were my revered and respected teachers (Jessup, Lissitzyn, Maktos and Mallinson) anå others whom I consider to be my friends and fellow laborers in the vineyards of peace, I abhor violence as a method to settle disputes and think of genocide as a crime which deserves the ultimate punishment of "outlawry" (hostis humani generis), thereby espousing without reservation the objectives of the Genocide Convention.
No: do many who oppose ratification deserve to have their concerns cismissed by sweeping and unsupported characterizations such as the one made by Professor Myres S. McDougal at the forty-third annual meeting of the American Society of international Law: "l Opposition to the Convention) moves from a complete misconception of the conditions under which we live today, a complete misunderstanding os the nature and the role of international law, a complete misunderstanding of our constitutional requirements and the obligations imposed by the United Nations Charter, and a tragic failure to consider what rational action calls for under the conditions of the present time"
we only differ on how we perceive the effects of this "treaty" on our democratic system of justice, even if it is largely rhetorical and non self-executing, and if it is ratified primarily to serve public relations objectives, no matter how well intentioned. The fact that we may not all have been blessed with the deep insight and knowledge apparently common to the proponents of ratification does not preclude our ability to question some of their arguments. To-date we have been able to stand our ground.
Genocide, to the discredit of humanity, has existed in one form or another from the beginning of recorded history: whenever a victor in battle, or a dominant segment of a society would dominate, persecute, eradicate or ensiave members of defeates nations or minorities within their own
(cited by Professor Stephen Grove, The Problem of "Mental Harm" in the Genocide Convention, Washington U. Law Quarterly 174 Footnote 34)