tude found their expression in other documents in the development of our liberties. Unchecked personal rule of a king was acceptable in the Middle Ages, but unacceptable (at least in England) after the Magna Carta. The rights of individuals to bail, trial by jury, freedom from cruel and unusual punishment, and the immunity of proceedings in Parliament had developed gradually in the sixteenth and seventeenth centuries, but until the English Bill of Rights of 1689 it was not clear that the King could not suspend any of these guarantees, some by act of Parliament. The United States Constitution and the American Bill of Rights further developed the concept that there were laws higher than the will of the state, and developed the concept that certain acts were prohibited to government even when adopted by the legislature. Yet even the United States Constitution contains clauses that today seem abhorrent, such as the three fifths clause 19 and the slavery clauses,20 and it took the post-Civil War Amendments to bring our Constitution up to what would today be considered acceptable guarantees of individual rights. Even the Fourteenth and Fifteenth Amendments, as we have recently seen, have undergone substantial growth in the past few decades.

In each of the stages in the development of human liberty how much significance did a given document, amendment, or judgment have? In detail, of course, the answer varies from instance to instance. Speaking broadly, however, it is fair to say that the documents which became landmarks were produced when the time was ripe for them (or perhaps a little before), and that their impact went far beyond the immediate and enforceable issue. The lasting documents were persuasive documents, and they changed inen's minds and men's lives..

Almost a quarter of a century has passed since World War II. While the past twenty-four years have hardly been a time

19. Article I, Sec. 2, cl. 3.

20. Article I, Sec. 9, cl. 1; Article IV, Sec. 2, cl. 3.

of peace, we have not seen again the horrors and excesses of the Second World War. Yet the possibilities of repetition cannot be put aside. The time is certainly ripe for the Genocide Convention, just as it was ripe in 1689 for the English Bill of Rights, in 1789 for the Constitution, in 1790 for the American Bill of Rights, and in 1868 for the Fourteenth Amendment. To stand aside from the Genocide Convention is to lose one's contact with the times. To say, as the United States has said until now, "We are against genocide, but we do not want to put it in writing," is to demonstrate insensitivity to the growth of an idea, in a manner not worthy of a great and freedom-loving nation. In practical political terms, not to sign the Genocide Convention is to dissipate one's influence, and to supply fuel for those who characterize the United States as the great hypocrite.

As Chief Justice Warren has said:

"We as a nation should have been the first to ratify the Genocide Convention. Instead, we may well be near the last. .

"This sad record and the responsibility for it lie squarely with those who have a parochial outlook on world problems. They have failed to measure the element of change in the world. They have failed to recognize men and their institutions do not stand still in the face of great changes. We are not so uncertain of ourselves and our future that we cannot make our institutions conform to our needs as a progressive people." 21

21. See Address of Chief Justice Earl Warren before the National Conference on Continuing Action for Human Rights (Dec. 4, 1968).

12

II. AN INTERNATIONAL CONVENTION OR TREATY IS THE MOST SUITABLE FORM FOR ADDRESSING THE DANGERS OF GENOCIDE

A. Treaties Are Today the Normal Means for Entering into Mutual Commitments for Common Purposes

Until the twentieth century, there were comparatively few general multinational treaties. The treaty power, both in the United States and other countries, was used primarily to settle boundaries, and to formalize certain limited kinds of commercial arrangements, especially with respect to shipping and fishing. Thus, not until the Versailles Treaty and the League of Nations Covenant did the United States, along with other countries, have to consider the feasibility and desirability of establishing international rules of conduct through treaties. Such concern as the United States-and others-had with treaties in the 1920's and 1930's was settled in 1945.

The United Nations Charter became not just a document creating an organization and establishing its 'internal rules; more important, the United Nations Charter became a general code of conduct, first for the victorious states in World War II, and now for nearly all states. In the Charter, drafted with the prominent participation of the United States, the signatory states agreed to join together ... to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and in encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion. [Art. 1(3)]; 22 "to refrain in their international relations from the threat or use of force against the territorial dignity or political independence of any state. [Art. 2(4)]; "to settle their international disputes by

"

[Article 2(3)]; and to "promote higher

22. See also, Article 13(1)(b).

standards of living, full employment, and conditions of economic and social progress and development" among all nations [Article 55(1)]. All of these provisions (and as many more could be cited) involved, to some extent, limitations on sovereign states' absolute freedom of action; nearly all of them might involve matters typically thought of as subjects of internal legislation. But the decision was taken in Washington and in the chanceries and parliaments of now more than a hundred nations, that the limitations on one's own freedom of action was well repaid in the commitments of other countries to likewise recognize that each country's action affects all other countries and the peace and welfare of all mankind.

The successes and disappointments of the United Nations. are not pertinent to this discussion. Certain it is that no nation -the United States included-has lived up fully to all the engagements in the United Nations Charter; but neither has any member state denounced the Charter or acted in deliberate defiance of the commitments it entered into. The point here, however, is a different one. The idea that treaties are the most solemn of international commitments, that they may and should be used to limit the actions of states and engage them in common pursuits, has been accepted, in the United States and universally. Further, and most relevant here, the idea has been accepted that treaties may and should be used to define what areas of individual and governmental activity are matters of international concern. In other words, nothing in the United Nations Charter nor in the many subsequent treaties-including the Genocide Convention-alters the basic principle that matters essentially within the domestic jurisdiction of states must be left to the states without outside intervention. What the Charter, and some of the treatics-including the Genocide Conventiondo, is to say that certain kinds of activity are now the concern of all.

B. The Genocide Convention Deals With a Subject
of Common Concern to All Mankind

The "principle" of international law, and of United States constitutional law that a treaty may only deal with matters of international concern 23 is, for all practical purposes, a tautology.24 When some states-or, as in this case, 74 states-consider a matter to be of sufficient concern to make a treaty about it, then realistically it is of international concern. The practical significance of the rule might be to inhibit a President who has been unsuccessful in securing passage of a bill of local content, say a rise in the minimum wage laws, from putting the substance into a treaty with a foreign country, and then attempting to assert it as national law. The Genocide Convention presents, from the point of view of the United States, just the opposite picture. Far from attempting to achieve internal reform by international treaty, the Genocide Convention would turn a set of rules already followed in the United States into obligations binding on other states and individuals as well.

But the argument in favor of the Genocide Convention does not rest on these almost grammatical or verbal points. Genocide is of international concern, and for two equally compelling reasons. One, massive horror anywhere on earth affects everyone and every country; and two, the kind of issue comprehended within the definition of genocide 25 is nearly always

23. Scc, e.g., American Law Institute, Restatement of the Law, Foreign Relations Law of the United States, § 117 (1965):

"(1) The United States has the power under the constitution to make an international agreement if

(a) the matter is of international concern, and

(b) the agreement does not contravene any of the limitations of the Constitution applicable to all powers of the United States." See also, Geofroy v. Riggs, 133 U.S. 258, 266 (1890); Santo Vincenzo v. Egan, 284 U.S. 30, 40 (1931).

24. For a full development of this point, plus tracing of various conceptions of the treaty power in United States constitutional history, see Henkin, The Constitution, Treaties, and International Human Rights, 116 U. Pa. L. Rev. 1012, esp. 1016-1026 (1968).

25. See pp. 4-5 and ante.