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U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker

Published online by Cambridge University Press:  27 February 2017

Louis Henkin
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Editorial Comments
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American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 341 - 350
Copyright
Copyright © American Society of International Law 1995

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References

1 The United States ratified the Genocide Convention in 1989, and the International Covenant on Civil and Political Rights in 1992. For the Convention, Dec. 9, 1948, see 78 UNTS 277. For the Covenant, Dec. 16, 1966, see 999 UNTS 171.

It was reported that the Clinton administration would seek Senate consent also to the Covenant on Economic, Social and Cultural Rights, the Inter-American Convention on Human Rights, and the Convention on the Rights of the Child.

2 Some have declared U.S. adherence ineffective under international law. See note 11 below.

3 The U.S. reservation requires U.S. consent to the Court's jurisdiction in any case, ad hoc.

4 Reid v. Covert, 354 U.S. 1, 16–18 (1957) (plurality opinion); Restatement (Third) of the Foreign Relations Law of the United States §111 comment a, §115(3) (1987) [hereinafter Restatement (Third)].

5 Article 20 provides: “ 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

6 See Brandenburg v. Ohio, 395 U.S. 444(1969); Hess v. Indiana, 414 U.S. 105(1973).

7 See Contemporary Practice ofthe United States, 88 AJIL 719, 728 (1994). The executive branch has proposed, and the Senate Foreign Relations Committee has recommended, an identical reservation to the Convention on the Elimination of Discrimination against Women.

8 The United States might have declared its understanding of the Convention as intending the private-public distinction reflected in U.S. constitutional jurisprudence. Or it might have entered a limited reservation so as to decline an obligation to prohibit private discrimination that is part of a person's liberty protected by (substantive) due process of law under the U.S. Constitution.

9 Compare Ingraham v. Wright, 430 U.S. 651 (1977) (corporal punishment of schoolchildren not “punishment” within meaning of Eighth Amendment).

10 See Rhodes v. Chapman, 452 U.S. 337 (1981). The reservation refers also to the Fifth and Fourteenth Amendments; perhaps some treatment or punishment, although not barred as cruel and unusual by the Eighth Amendment, might be deemed to deprive a person of life, liberty or property without due process of law.

The instrument of ratification of the Torture Convention also included:

[T]he United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

See Contemporary Practice of the United States, 85 AJIL 334, 337 (1991). Is the U.S. understanding of “international law” and of the Torture Convention beyond dispute? The final clause was doubtless inspired by a decision by the European Court of Human Rights in the Soering case that for the United Kingdom to extradite Soering to the United States would violate the European Convention provision against inhuman treatment if the accused would be subject to spending time on “death row.” See Richard B. Lillich, The Soering Case, 85 AJIL at 128.

11 Sec Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, Art. 19(c). Some conventions expressly preclude reservations incompatible with their object and purpose, e.g., Art. 20(2) of the Race Convention, opened for signature Mar. 7, 1966, 660 UNTS 195.

At least 10 states have objected to one or more of the RUDs attached by the United States to its ratification of the Covenant on Civil and Political Rights. See Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1993, UN Doc. ST/LEG/SER.E/12, at 134–37 (1994).

A “General Comment” on reservations to the Covenant, adopted by the Human Rights Committee, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), is highly relevant to the RUDs attached by the United States to its ratification. Excerpts from the Committee's comments include:

• “However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being.” (Para. 4)

• “The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.” (Para. 7)

In the Committee's judgment certain provisions in the Covenant may not be the subject of reservations, inter alia:

• “Accordingly, a State may not reserve the right … to subject persons to cruel, inhuman or degrading treatment or punishment, … to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred … .” (Para. 8)

• “The intention of the Covenant is that the rights contained therein should be ensured to all those under a State party's jurisdiction… . Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.” (Para. 12)

• “Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.” (Para. 18)

• “So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to those presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law.” (Para. 19)

12 As a matter of law, the United States may be assuming obligations not to amend the Constitution or to repeal existing legislation so as to reduce the protection of rights below the level at which it is at the time of U.S. ratification. In some instances, the language of the reservation may lend itself to that interpretation.

13 Article 6(5) of the Covenant prohibits capital punishment for crimes committed by persons under the age of 18. In ratifying the Covenant, the United States stated: “[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” See Contemporary Practice of the United States, 89 AJIL 96, 109 (1995). The phrase “subject to its Constitutional restraints” is confusing but seems not to modify the substance of the reservation. In this respect (unlike the reservation to the Torture Convention above), the United States does not seem to have accepted an international obligation to do even what the Constitution requires, i.e., not to impose capital punishment for crimes committed by a person under 16 years of age. Compare Thompson v. Oklahoma, 487 U.S. 815 (1988) with Stanford v. Kentucky, 492 U.S. 361 (1989). In the opinion of the Human Rights Committee, such a reservation is unacceptable. See the Committee's general comment, para. 8, quoted in note 11 above.

Unlike previous versions of the reservation to that article, the United States did not reserve the right to execute pregnant women, which may not be prohibited by the Constitution. In part, that may reflect the assumption that, in the light of “death row,” the time between sentence and execution will, in fact, always be longer than a woman's period of gestation.

14 See Art. IX of the Genocide Convention; Art. 30 of the Torture Convention, GA Res. 39/46 (Dec. 10, 1984); Art. 32 of the Race Convention; Art. 29 of the Women's Convention, GA Res. 34/180 (Dec. 18, 1979).

15 The International Covenant on Civil and Political Rights does not include an ICJ clause.

16 See 1991–92 ICJ Y.B. 149–50.

17 At his confirmation hearings Secretary of State Warren Christopher decried such refusals to submit to judgment by the ICJ. See Nomination of Warren M. Christopher to be Secretary of State: Hearing Before the Senate Comm. on Foreign Relations, 103d Cong., 1st Sess. 72–73 (1993).

18 Or it may be designed wholly for domestic political ends.

19 See Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, Art.41.

20 See, e.g., International Covenant on Civil and Political Rights, Art. 50.

21 See Missouri v. Holland, 252 U.S. 416 (1920); Restatement (Third), note 4 above, §302 comment d.

22 In matters touching on foreign affairs, Congress also has a recognized, unenumerated “foreign affairs” power, the limits of which have never been determined. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Perez v. Brownell, 356 U.S. 44 (1958).

23 It has been suggested that if human rights conventions were self-executing, they would overwhelm the courts. The fear is mistaken. The vast majority of cases arising under a covenant or convention would be cases that already arise also under the Constitution or civil rights laws. In any event, if the convention is not self-executing, the United States is required to implement it by legislation, and the same cases, and the same number of cases, might then arise under the implementing legislation.

24 See note 26 below.

25 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

26 See the reservation to the U.S.-Canada Niagara Power Treaty in 1950. That reservation was rejected by the U.S. court of appeals in Power Auth. of N.Y. v. Federal Power Comm'n, 247 F.2d 538 (D.C. Cir.), vacated sub nom. American Pub. Power Ass'n v. Power Auth. of N.Y., 355 U.S. 64 (1957). I wrote in support of that reservation as a permissible condition on Senate consent in that particular case for a special reason and purpose. Louis Henkin, The Treaty Makers and the Law Makers: The Niagara Pmoer Reservation, 56 Colum. L. Rev. 1151 (1956). If what I wrote might be interpreted as supporting a general principle that would allow the President, or the Senate, to declare all treaties non-self-executing, that is not my opinion. Compare Restatement (Third), note 4 above, §111(4), and §303 Reporters' Note 4.

27 See text following note 31 below.

28 See generally Louis Henkin, Constitutionalism, Democracy and Foreign Affairs, ch. 2 (1990).

29 Some provisions in some conventions cannot be self-executing in the United States, notably those that require violations to be punished as crimes, since, it is accepted, only Congress (not the treaty makers) can enact criminal legislation. See, e.g., Genocide Convention Implementation Act, 18 U.S.C. §1091 (1988), and the legislation implementing the Convention against Torture, Pub. L. No. 103–236, §506, 108 Stat. 382, 463 (1994) (to be codified at 18 U.S.C. §113B). But the courts can enforce self-executing human rights provisions by injunction and commonly also by common law remedies.

30 The Senate did not purport to declare the Genocide Convention to be non-self-executing, but it instructed the President not to deposit the instrument of U.S. ratification until Congress enacted the implementing legislation which the Convention explicitly required.

31 Declaring the Covenant on Civil and Political Rights non-Self-executing (and failing to execute it promptly) runs counter to the obligation of the United States in Article 2(3):

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

32 See Statement by Secretary of State Dulles, in Treaties and Executive Agreements: Hearings Before a Subcomm. of the Senate Comm. on the Judiciary 825 (1953). See generally Natalie Hevener Kaufman, Human Rights Treaties and the Senate, ch. 4 (1990).