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Prior Association Action
When the subject was originally considered by thc American Bar Association there were considerable differences within the organization. The special Committee on Peace and Law Through the United Nations opposed ratification. The Section on International and Comparative Law supported ratification with certain reservations. The House of Delegates, acting upon the recommendation of a special committee of its own, in September, 1949 declined to approve ratification as submitted because it "involves important constitutional questions” and “raises important fundamental questions but does not resolve them in a manner consistent with our form of government."
Although the "important constitutional questions" or the "important sundamental questions” deemed inconsistent with our form of government were not spelled out, it is assumed that what was meant is what the opponents to ratification testified to at the subscquent Senate hearings on the treaty. The principal objections are revicwed hercin.
The following paragraphs of the 1949 resolution of the House should be noted:
“Bc It Resolved, That it is the sense of the American Bar Association that the conscience of America like that of the civilized world revolts against Genocide (niass killing and destruction of peoples); that such acts are contrary to the moral law and are abhorent to all who have a proper and decent regard for the dignity of human beings, regardless of the national, cthnical, racial or political group to which they belong; that Genocide as thus understood should have the constant opposition of the United States and of all of its people.” The matter has not been further considered by the Association since 1949,
The Existing U.S. Commitment The United States, by an almost unanimous vote of the Senate, ratified the United Nations Charter and thereby assumed the obligation to further its objectives. One of these (Article 1) was to achieve “universal respect for, and observance of, human rights and fundamental freedoms for all.” Articles XIII, IV, LVI, LXII and LXVIII of the Charter spell out the commitments in gscaler detail.
As Phillip C. Jessup, now a member of the International Court of Justice, said in huis Modern Law of Nations (p.91):
"It is already law at least for members of the United Nations, that respect for human dignity and sundamental human righies is obligatory. The duty is imposed by the Charter, a treaty to which they are partics."
Treaties and the Constitution The opposition to the Genocide treaty has long asserted that the whole subject
matter of human rights is not a proper one for international agrecments (treatics) and therefore Genocide must fall with all the rest. Since this question has been so thoroughly considered by thc Clark committee, it necd only be touched upon here.
The treaty-making power under our Constitution (Article II, Section 21 is very broad. Article II, Section 2 of the Constitution provides:
“He (the President) shall have the power by and with the advice and consent of the Senate to make treaties, provided two thirds of the Senators present concur;"
The power does not, of course, rise above the Constitution. But, subject to that limitation, it is extensive. As the Supreme Court said in Geofrey v. Riggs, 133 U.S. 258, 267 (1890):
“It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching on any matter which is properly the subject of negotiations with a foreign country."
The question of the treaty-making power in this arca is thus answered in the Clark committee report (p.1):
“It may seem almost anachronistic that this question continues to be raised. It is nearly a quarter of a century since this country used the treaty power to become a party to the U.N. Charter one of whose basic purposes is the promotion of human rights for all. The list of parties to the various human rights treaties proposed by the U.N. has become longer each year. In each of the last 2 ycars the U.S. Senate has approved a human rights treaty without a single dissenting vote. In December 1968, the Chicf Justice of the United States noted that “We as a nation should have been the first to ratify the Genocide Convention and the Race Discrimination Convention." And yet the suggestion persists that this Nation is constitutionally impoicnt 10 do what we and the rest of the world have, in fact, been doing."
Subject Matter May Be
Both International and Domestic It has been said in opposition to ratification that the subject matter of a Ircaty must bc exclusively or cssentially of forcign or international concern. But our history is to the contrary. We have repeatedly entered into treatics held to be valid covering matters usually considered domestic and left to local state regulation. These deal with such matters as debts, land litics, eschcal, statutes of limitation, administration of alien cstates.
For a list of subjects which arc covered by treaties although of both local as
well as international concem sec testimony, 1950 Senate Hearings on Executive 0, p. 25, by the then Solicitor General of the United States.
It may be an oversimplification to suggest that if this country has the power 10 cnter into a treaty to save the lives of birds, as was sustained in Missouri v. Holland, 252 U.S. 416, (1920), the same power must exist to save the lives of human beings.
It is interesting to recall that the United States has long accepted the view that the denial of human rights and other anti-social conduct are proper subjects of treaties. Thus the United States has entered into treaties prohibiting white slave traffic, traffic in arms, in narcotic drugs, and in slaves. The two human rights treaties recently ratified by the United States, after unanimous votes in the Senate, included the Supplementary Convention on Slavery (1967) and the Supplementary Convention on Refugees (1968).
Special note should be taken of the 1967 Slavery treaty because its ratification was specifically endorsed by the American Bar Association. It obligated the United States, inter alia, to abolish practices whereby "a woman, without the right to refuse, is promised in marriage on payment of a consideration of money or in kind to parents, guardian, family or any other person...." and to abolish any institution whereby "a woman on the death of her husband is liable to be inherited by another." It is hard to conceive of something more likely to be an exclusive municipal subject than that of the right or inheritance.
No Self-Executing Provision Another objection to ratification asserted is that the treaty would be scllcxccuting. The result, it is claimed, would be to impose a law upon the citizens of this country without the Congress having enacted any implementing legislation. Article I does designate Genocide as “a crime under international law." But Article V requires the partics “to enact, in accordance with their respective Constitutions, the necessary Icgislation to give effect to the
....Convention and .... to provide cssective penalties ..." Could anything he clcarer?
Even in the absence of the requirement of Article V, a treaty cannot support a criminal prosecution in the absence of Congressional action.
"It is not thic function of treatics to cnact thc fiscal or criminal law of a nation. For this purpose no treaty is selfexccuting...."Thc Over The Top, SF.2d, 838 (1925).
No Limitation on Speech or Press Because Article III makes "direct and public incitement to commit Genocide" a crime, it is clained the treaty would constitute an infringement of Ist Amendment Constitutional guarantees of free speech and press. It should be
noted again that the convention is not sellexecuting and docs not makc any act punishable under U.S. law. Only Congress can do this.
There is a distinction between advocacy and incitement. The Convention seeks to prevent “incitement" to commit a crime.
As the Court said in Giboney v. Empire Storage Co., 336 U.S. 490 (1949) at 498:
“It has rarely been suggested that the constitutional freedom for specch and press extends to speech or writing as an integral part of conduct in violation of a valid criminal Statute."
More recently, in Brandenburg v. Ohio 395 U.S. 444 (1969) at 447 (89 S.Ct. at 1831) the Court said:
“... the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Place of and Trial by Jury Fear has been expressed that because Article VI refers to a possible trial of an accused before “such international penal tribunal as may have jurisdiction" that an American citizen could be deprived of his constitutional right to a trial by jury, or be forced into a trial in some foreign court under procedures not American.
It is difficult to understand this objection to ratification in the face of the full Article VI which reads:
“Persons charged with Genocidc or any of the other acts cnumcrated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Partics which have accepted its jurisdiction."
It is clear from the foregoing that, since thcre is no such international tribunal, the accused would be tried by a United States court. Nothing in the Convention makes mandatory American participation in an international tribunal. In the more than twenty years since the adoption of the Convention no such tribunal has come into being. Although a proposal for one was presented to the United Nations, it was last discussed by the Legal Committec in the UN in 1957, but the whole project was indefinitely postponed.
If at some future date such a court is in fact proposed, and is an appropriate trcaty is adopted by the United Nations, and if the President of the United States decides to submit it to the Senate for its advice and consent, then and only then will this country, through its elected Senators, by open debate and aster full consideration of its mcrits determine whether it wishics to agce to the court's jurisdiction. It seems most unlikely that any President with the support
of the Senate would ratify a Convention which in any way diminished the constitutional rights of Americans.
“Serious Bodily or Mental Harm". Not Vague One other objection, more of phraseology than of substance, goes to the definition of Genocide, Article II (b) as including acts “causing serious bodily or mental harm to the members of the group." It is asserted that this is too vague to describe a crime,
It is clear, however, that the opening portion of Article II is specific enough to describe the crime and the victims. It reads:
"In the present convention, genocide means any of the following acts commited with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (b) (above)."
The drafting history of the Convention (debates in Committee 6 and Plenary of the 3rd General Assembly) establishes that serious mental harm would have to be inflicted on the group with intent to destroy it. As was said by the State Departments (Executive 0, 81st Congress, 1 st Session, 1950, Senate p.4): "The destruction of a group may be caused not only by killing. Bodily mutilation or disintegration of the mind caused by the imposition of stupefying drugs may destroy a group. So may sterilization of a group, as may the dispersal of its children."
Limitation of Article 2 (7) of UN Charter It is asserted that by virtue of Article 2 (7) of the United Nations Charter and bccausc murder is a matter of domestic concem, that the United States is barred from entering into a treaty on the subject. Article 2 (7) provides that "nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state of shall require the members to submit such matters to settlement under the present charter."
This article, of course, is a limitation upon the United Nations, as it was cstablished by the charter and upon such activities as depend on the charter for their authority. This docs not prevent the member states from making any agcements they wish to make by new treaties to carry out one of the basic purposes of the United Nations. This is the exercise of sovereign power by any slaic which acccpts the treaty. If any meaning is to be given to the idcals expressed in the purpose clause (and elsewhere) in the Charter, obviously it would not be an interpretation which prevents members from carrying forward these objectives.
Reference to International Court of Justice Article IX provides for the submission, at the request of any party, of disputes relating to the intrepretation, application or fulfillment of the Convention, to