The Ghost of Senator Bricker

The United States has, of course, very recently adopted a few human rights treaties, but in doing so it has attached reservations, understandings and declarations that undercut many of the provisions of these treaties. Louis Henkin suggests that by imposing these conditions on international human rights treaties the United States has, in effect, asserted that:

1. The United States will not undertake any treaty obligation that it will not be able to carry out because it is inconsistent with the United States Constitution.

2. United States adherence to an international human rights treaty should not effect — or promise — change in existing US law or practice.

3. The United States will not submit to the jurisdiction of the International Court of Justice to decide disputes as to the interpretation of application of human rights conventions.

4. Every human rights treaty to which the United States adheres should be subject to a 'federalism clause' so that the United States could leave implementation of the convention largely to the states.

5. Every international human rights agreement should be "non-self-executing."(17)

These "principles" require careful analysis. First, if the US Constitution requires a higher level of protection for a human right than provided by a treaty, then a reservation or understanding on that specific point would be appropriate. This issue arises, for instance, when one compares the First Amendment protection of free speech and Article 20 of the International Covenant on Civil and Political Rights, as Article 20 requires the state to prohibit war propaganda and "racial hate speech." In other cases, however, the U.S. human rights standard may be lower than the international standard. The International Covenant on Civil and Political Rights prohibits the death penalty for persons under 18 years of age who commit capital crimes, but presently in the United States the death penalty may be imposed on those who are at least 16 years old.

The third justification for reservations, understandings and declarations is not relevant with respect to the International Covenant on Economic, Social and Cultural Rights or to the International Covenant on Civil and Political Rights, as these treaties do not contain a provision providing for disputes to be submitted to the International Court of Justice. It should be noted, however, that: "The Clinton administration reserved on the 'ICJ clause' in ratifying the Race Convention, as President Bush did for the Torture Convention, as President Reagan did in ratifying the Genocide Convention."(18)

Points 2, 4 and 5 in Henkin's list, however are especially troublesome in considering the ratification of the International Covenant on Economic, Social and Cultural Rights. If the U.S. will not accept any obligation exceeding existing domestic law, there is no meaning in its ratification of a treaty. At least ten states that are parties to the International Covenant on Civil and Political Rights have objected to US reservations on this ground. Moreover, the Committee on Human Rights has issued a General Comment on such reservations that includes the following affirmation: "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."(19)

An understanding attached to ratification of the International Covenant on Economic, Social and Cultural Rights, which restricted the effect of the treaty to matters of federal jurisdiction, would violate international law. Moreover, it would effectively nullify the treaty, because many of the substantive concerns of the Covenant are matters of state jurisdiction under the American federal system of law. International law allows a State party to leave to its states or the federal government the implementation of its treaty obligations, but the signatory remains responsible under the terms of the treaty for implementation of all its provisions. Clearly, international law does not permit a federal government to exempt state governments from the treaties it ratifies.

Moreover, the US Constitution does not provide a states' rights limitation on the treaty power of the federal government. Thus, the U.S. cannot enter a "federalism" reservation that would have the force of law. Should it, nonetheless, attach such an "understanding," as it has done in the past to human rights treaties, the result would be to further undermine implementation of international human rights law both in the U.S. and throughout the world.

Perhaps an even more important issue, however, concerns US declarations that the human rights treaties it has ratified should be "non-self-executing," which means that legislation must be passed by Congress to give them effect within the United States. Such a declaration was made when the Senate ratified the International Covenant on Civil and Political Rights, and at the same time the Bush administration stated that it would not submit to Congress any enabling legislation concerning the treaty. Clearly, this strategy is designed to keep courts in the U.S. from using treaties to judge domestic law by international standards. Such an approach to ratifying human rights treaties not only undermines international law but is also is contrary to Article IV of the US Constitution, which provides expressly that treaties are "the supreme law of the land." Henkin argues, "The Framers intended that a treaty should become law ipso facto, when the treaty is made; it should not require legislative implementation to convert it into United States law."(20)

These reservations, understandings and declarations are the result of the approach taken by the administrations that have submitted treaties to the Senate for its advice and consent. In the hearing before the Senate Foreign Relations Committee in 1979 on ratification of the International Covenant on Economic, Social and Cultural Rights, representatives of the Carter administration asserted that the Covenant was merely "a declaration of aims" and that "no ratifying party thereby commits itself to present implementation of these rights."(21) A former U.S. ambassador to the United Nations assured Committee members that the "Covenant is in fact merely . . . a 'statement of goals to be achieved progressively'."(22)

Advocates of US ratification of treaties have often tried to minimize the effect of a treaty on domestic law, in an effort to obtain Senate support. This has made it difficult to argue against the reservations, understandings and declarations that have been defended as merely ensuring consistency with US law. Any attempt to obtain ratification of the International Covenant on Economic, Social and Cultural Rights must find a way to prevent the reservations, understandings or declarations that have been attached by the Senate to the International Covenant on Civil and Political rights and to other human rights treaties. Perhaps this means advocating openly and forcefully that ratification of the Covenant will require significant changes in U.S. law. © Robert Traer 2016