U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (1992) | Samuel Moyn | August 01, 2016

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U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (1992)

U.S. Reservations, Declarations, and Understandings

International Covenant on Civil and Political Rights

138 Cong. Rec. S4781-01

I. The Senate's advice and consent is subject to the following reservations:

(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. [Article 20 holds: 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.]

(2) That the 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.

(3) That the United States considers itself bound by Article 7 [prohibiting “torture or … cruel, inhuman or degrading treatment or punishment”] to the extent that "cruel, inhuman or degrading treatment or punishment" means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States….

(5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to individuals who volunteer for military service prior to age 18.


II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Covenant:

… (5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.


III. The Senate's advice and consent is subject to the following declarations:

(1) That the United States declares that the provisions of Articles 1 through 27 of the Covenant [i.e., all of the substantive provisions] are not self-executing….

IV. The Senate's advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President:

Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

QUESTIONS

1. According to Professor Louis Henkin, “Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such reservations, the convention would be futile. … [T]he United States, it is charged, is pretending to assume international obligations but in fat is undertaking nothing. … The United States, it is said, seeks to sit in judgment on others but will not submit its human rights behavior to international judgment.” Do you agree? 

2. According to Professor Jack L. Goldsmith, “[o]ver one-third of the parties to the ICCPR have qualified their consent … through reservations or understandings to all but one of the rights provisions,” so U.S. RUDs “though a minority practice … are not materially different than the ones taken by other liberal democracies.” What is the significance of this claim, if true?

 

 

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August 01, 2016

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Samuel Moyn

Harvard Law School

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