do, the case "shall be tried by a competent. tribunal of the state in the territory of which the net was committed," or by an international tribunal.

It doesn't say anything about trial in the jurisdiction of which the person happens to be a national if he was caught in a genocidal net in a foreign country. That foreign country has complete jurisdiction, I think exclusive jurisdiction, over a citizen of the United States if he commits an offense there and he will be tried there without the protection accorded to him by the Constitution of the United States.

CONVENTION DOES NOT PREVENT GENOCIDE

In my judgment, gentlemen, and I hope you will seriously consider it, wo are all strongly opposed to genocide, I think genocide which is ono of mass destruction of people, if you want to use that definition, or of parts of groups of people, is a very heinous crime. Nevertheless, this convention doesn't prevent it. It permits, and we have crass examples of it in recent years, of the deliberate destruction of the political opposition, and that is not genocide. Nobody here has filed a complaint with the United Nations that Russin committed genocide. when it killed Hungarians, when it killed Czechoslovakians, and when it killed Poles. They were killed as political opponents, and that right. was reserved.

As a matter of fact, there has been much discussion in this committee about. Vietnam. There has been much written and speculated if U.S. troops were withdrawn immediately from Vietnam there would be mass assassination of South Vietnamese by the North Vietnamese when they take jurisdiction of the country, if they have power to do it. Yet that will not be genocide, because they would merely be destroying the political opposition.

So I suggest, gentlemen, that you have before you a convention that does not prevent genocide in the instances that are flagrantly in public notice and, secondly, it makes a lot of problems for the United States.

Nobody has charged the Soviets with genocide. Here is a book which charged the United States with genocide against the Negro people, and they take it seriously, if you take the opportunity to read this book. They claim that all of the things that the United States has dono to the Negro people in one form or another are genocide within the meaning of this convention, and it is on file in the United Nations. Now what the United Nations will do about it. I don't know. It hns recently been activated, but that is one of the things we face. We are going to be charged with all kinds of genocide but the Communist countries are not.

I submit to you gentlemen that the treaty as presented ought not to bo ratified by the U.S. Senate by way of giving its advice and consent to the President's transmission.

(Genocide Convention, hearings, Subcommittee, Committee on Foreign Relations, U.S. Senate, 92-1, March 10,

UNCONSTITUTIONAL USE OF TREATY-MAKING POWER By Senator Jesse Helms of North Carolina

Ratification of the Genocide Convention would mark a watershed in the history of law in the United States. If approved by the Senate. it would bring about profound changes in the independence of our legal system and the objecarity of our system of justice. Ratification of this Convention would amount to an unconstitutional use of the treats-making power of the United States. It would violate hasic principles of our Constitution and fundamentai tenets of international law. While the notion of a treaty to prevent genocide has emotional appeal in the abstract, the difficulty of translating such prohibitions into workable law without doing violence to our system of justice bas proved to be insurmountable.

The scope of the treats making power of the United States is cefined and limited by both the Constitution and basic principles governing the law of natious. Justice Sutherland made clear the relationship between constitutional law and international law in determining U.S. treaty power in the famous case of the United States v. Curtiss-Wright Export Corp.. 299 U.S. 304 (1936).

The power of the United States to make treaties rested in the national government, not as one of the powers granted to it by the States through the Constitution, but as a natural and necessary part of its sovereignty. "As a member of the family of nations," Justice Sutherland observed. "the right and power of the United States in that field are equal to the right and power of

the other members of the international family. Otherwise, the United States is not completely sovereign."

However, the States did regulate the exercise of that power in the Constitution. The most obvious regulation of the treaty-making power is Article II. section 2 of the Constitution which provides that treaties shall be made "by and with the advice and consent of the Senate" and that a two-thirds vote of the Senate is necessary for ratification of a treaty. Other limitations have been developed over time by the very process of operating & government under the Constitution. This tradition. beginning with the drafters of the Constitution. bas limited the treats-making power to those areas of concern which are of international character. Thomas Jenerson wrote in his manual of parliamentary practice that the general power to make treaties, the Constitution must have intended to comprebend only those objects which are usually regulated by treaty, and cannot be otherwise regulatēd.”~

If we apply Mr. Jezersons Test for the constitutionally permissible use of the treaty power to the Genocide Convention. we find the Convention deficient. Genocide is a matter which falls outside the constitutional scope of the treatymaking power. If fälls on both counts. First, genocide is a matter which, with the exception of the present convention, bas never been regulated by treaty or customary international law. Although the word "genocide" itself may be of fairly recent origin, the acts which it describes have been occurring long before this century.

Historically, acts of genocide bave not been considered to be within the domain of international law since ther constitute criminal acts already regulated by the domestic law of all civilized nations. The acts defined by the Genocide Convention continue to he so prohibited by the domestic laws of almost every country of the world. Fence, Mr. Jefferson's second test also is not met by the Convention; namely, that it be a matter which cannot otherwise be regulated.

Making genocide, as such, a crime against the United States or of a particular State can be done without the assistance of a treaty. The legislative power of Congress and State le islatures is sufficient to protect Americans from these acts through our various criminal codes

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If genocide is of concern to the people of the United States. would not the wise course of action be to enact domestic legislation? If a specific legal prohibition of genocide is necessary, as a sign to the world that Americans oppose genocide, then why have the supporters of the Convention not brought forward legislation to amend the present federal criminal code to probibit genocide? The fact that bo such làŵ has been introduced during the twenty-seven years in which ratification of the Convention has been considered refects not only on the propriety of enacting such laws, but also upon the necessity of doing so, The classic statement on the limited scope of the treats making power was made by Mr Charles Erens Hughes, just before be became Chief Justice of the United States and after be bad been Secretary of State. As President of the American Society of International Law. Chief Justice Burbes said that the treatr Lower "is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised ... with respect to matters that bare no relation to international concerns. . . There (is) a limitation upon the treaty-making power that is intended for the purpose of paving treaties made relating to foreign affairs and not make law for the people of the United States in its internal concerns."

The noted international legal scholar, Charles Chener Erde, agreed with Chief Justice Hugbes and maintained that: "by the adoption of the Constution the Republic as a State relinquisbed the capacity to conclude treaties designed or calculated to restrict the American people in their purely internal concerns." The Genocide Conreation also violates this test of constitutionality. It is the essence of the Genocide Convention to regulate the "American people in their purely internal concerns." Article II of the Convention desnes fire categories of offenses which constitute the crime of genocide. These categories include acts which cause death. bodily injury, mental harm or kidnapping of members of a national, racial, ethnical or religious group. The Convention provides that genocide. conspiracy to commit genocide, public incitement to commit genocide, attempt to commit genocide and complicity in genocide shall also be punishable. These crimes, as defined by the Convention, are applicable to Americans acting within the jurisdiction of the United States. Under Arucie VI of the Constitu tion. the Genocide Correntior. upon ratification. will become the supreme law of the land and will necessarily be enforced just as any section of the Constitution

The most important duty of any nation under international law is to protect its external independence and its internal inzisdiction The Genocide Convention Fiolates both these essential aspects of national sovereignty. Its basic goal is to internationalize the domestic criminal law of the nations which are parties to it. As such, United States ratification of the Convention would violate the external independence and internal jurisdiction of the American legal system.

Criminal law is within the "reserved domain" of the domestic jurisdiction of a nation. It is a general principle of international law that a State has jurisdiction with respect to any crime committed in whole or in part within its territory. In the famous international law case known as The Over The Top. a United States court held that the domestic criminal law of this country is not the proper subject of a treaty. The court stated:"

It is not the function of treaties to enact the... criminal law of a nation... Nor is there any doubt that the treaty making power has its limitations. Certain it is that no part of the criminal law of this country has ever been enacted by treaty." (5 F.2d 82S)

Tet, this is indeed what ratification of the Genocide Convention would accomplish.

The regulation of international activity of the conduct of one nation to another-is the essence of the constitutional test of the treaty-making power. The treaty power may only be exercised with respect to matters which directly afect nations in their relationship with each other. In short, treaties, in the words of former Secretary of State John Foster Dulles, become "contracts between nations as to how they should act." But. by omitting governments from those re sponsible under its provisions for acts of genocide: the Genocide Convention is not a contract between nations as to how they should act, but a contract between a nation and its citizens. as to how they should act.

The American Law Institute, in its Restatement of the Foreign Relations Law of the United States, summarizes the constitutional limits of the treaty-making power as follows:

"An international agreement of the United States must relate to extemal concerns of the nation as distinguished from matters of purely internal nature. As the effect of international agreements is the creation or modification of relationships under international law, it would be inconsistent to utilize them for the regulation of matters bearing no relation to international afairs."

Again, the effect of the Convention concerning the actions of nations in their relationships with each other is so minimal that it can hardly be said to meet this basic test.

During nearly two hundred years. the constitutional purpose of the treaty. making power of the United States has not changed. Whether measured br Mr. Jefferson's test or that of Chief Justice Hughes or the American Law Insri. tute. it is simply to promote the international interests of the United States by securing the action of foreign governments. I do not believe that treaties should. or lawfully can. be used as a device to circumvent the constitutional procedures relating to matters of domestic concern. If ratified. the Genocide Convention will take effect in the United States as domestic criminal law.

The constitutional propriety of ratification of the Genocide Convention must ultimately be judged by the end sought to be achieved by the Convention. The · substantial end of the Convention is not to regulate the actions of one government to another. Rather, it is an agreement entered into by a number of states to alter the criminal law within their respective domestic jurisdiction. A coastitutionally proper treaty must be more than a mere subterfuge for the enactment of domestic legislation. The Genocide Convention is not.

(Genocide Convention, hearings, Subcommittee, Committee on Foreign Relations, U.S. Senate, 95-1, May 24, 16,

THE GENOCIDE CONVENTION--TODAY AND TOMORROW By Senator Jesse Helms of North Carolina

The United Nations Convention of Genocide responds to a deeply. felt human need. The horror of genocide developed after World War II from a gradually expanding awardness of the Jewish Holocaust. This international perception grew backwards in time, as the understanding of genocide gave a name to the crimes against the Armenian people and the Ukrainians. Yet even though the Convention has been in effect since 1951 for those nations which have ratified it, and today 96 countries have ratified it, the Convention remains a dead letter in the face of unspeakable crimes against the Tibetans, the Cambodians, the Sikhs, the Afghans and a score of ethnic groups in Africa.

Why has the Convention been a dead letter?

Why has not a single case been brought under the Convention? Some allege that the reason is because the United States, the most powerful nation on earth, has signed the Convention, but not ratified it. Yet there is nothing to prevent Great Britain, France, or Japan from going on the offensive against the perpetrators of genocide today. Nevertheless they do not.

Would the United States do so if the Senate ratifies the Convention? To bring charges of genocide against a nation would result in an almost irreparable break in relations. When this nation is relucfant to arraign the Soviet Union for a crime such as the shooting down of KAL 007 (and at the very least a breach of the multilateral civil aviation treaties), or for scores of plain violations of the strategic arms control treaties, is it conceivable that we would act against breaches of the Genocide Convention?

Moreover, there are serious conceptual flaws in the present construction of the mechanisms which are supposed to make the treaty work. Indeed, the deficiencies are so serious from a practical point of view that there is serious doubt that the Convention could work at all. Ambiguities of drafting, irreconcilable differences bctween political systems, political compromises, and a modicum of wishful thinking all combine to make the Convention a virtually unworkable arrangement. Even with ratification by the United States, the Convention can not and will not work to prevent or punish the crime of genocide.

Yet there is a humane wish to memorialize those who died in the Holocaust of World War II. The Convention is indeed a rhetorical statement, an expression of an international consensus against the crime that seeks to exterminate not just men and women, but a whole ethnic and religious group. The world owes a debt of gratitude to the victims of the Holocaust for raising the sensitivity of all