IN RESPONSE TO THE SECOND AND THIRD PERIODIC REPORTS OF
THE UNITED STATES OF AMERICA:
Shadow Report on U.S. Exceptionalism and Lack of Implementation

1

This Report was prepared by Penny Venetis, Clinical Professor of Law and Clinical
Scholar, Co-Director Constitutional Litigation Clinic, Rutgers School of Law – Newark with
the assistance of Cynthia Soohoo and Connie de la Vega and is submitted on behalf of:
Human Rights Advocates
Lawyers Committee for Civil Rights Under Law, Washington, DC.
Penal Reform International
UN Working Group of the National Lawyers Guild's International Committee
WILD for Human Rights

2

EXECUTIVE SUMMARY
The United States has been intrinsically involved in the development of the
United Nations from its first incarnation as the League of Nations, to the aftermath of
World War II and the development of peaceful diplomacy. The U.S. has also played
the role of watchdog for the implementation of human rights around the world. The
U.S., however, has faltered in meeting its own international human rights obligations.
An example of this is the U.S.’s failure to meaningfully implement the International
Covenant on Civil and Political Rights (“ICCPR”).
The United States ratified the International Covenant on Civil and Political Rights
in 1992. It appears that the signing of the treaty was a ceremonial act, however, rather
than a commitment to fully implement and comply with the treaty’s provisions. Nearly
15 years after the signing of the treaty, the United States has failed to acknowledge the
full extent of the treaty’s legal significance and has not taken the active steps necessary
to ensure that treaty obligations are enforced as U.S. law. Moreover, when the U.S.
signed the treaty, it simultaneously issued broad reservations, understanding and
declarations (“RUDs”) limiting the scope of its obligations and rendering the treaty
unenforceable. In essence, the RUDs strip the ICCPR of all its authority and relevance
to the U.S. As such, the U.S.’s RUDs have been criticized both by this Committee and
fellow signatory parties to the ICCPR.
This Committee criticized the U.S.’s widely formulated reservations. It noted that
the U.S.’s RUDs were “intended to ensure that the United States has only accepted
what is already law in the United States.”1 Additionally, 11 fellow signatories and this
Committee2 found the U.S. reservations to Article 6.5 regarding the juvenile death
3

penalty and Article 7 regarding the use of torture and cruel, inhuman and degrading
treatment, as inconsistent with the Covenant’s object and purpose, and in direct conflict
with the non-derogable provision of the right to life under Article 4.2.
Despite the clear statements by this Committee of what the U.S. needs to do to
comply with the ICCPR, the U.S. has not taken any of these considerations into
account. It continues to stand by its RUDs, even in situations when the U.S. Supreme
Court has rendered them unneccessary, as in the case of banning the execution of
juveniles.3
The U.S. also continues to assert that the treaty is non-self executing and that it
cannot be invoked in U.S. Courts to remedy a violation of the human rights guaranteed
by the ICCPR. This failure to implement the ICCPR and the continued clinging to RUDs
violates the ICCPR on its face. Additionally, the U.S.’s failure to implement the treaty
and the U.S.’s failure to ratify Optional Protocol I leaves those whose human rights
have been violated with no remedy.

I.

THE U.S. IS IN VIOLATION OF THE ICCPR
The ICCPR not only enumerates certain human rights, it also requires that all

signatory parties fully honor those rights. Article 2 of the ICCPR imposes obligations on
the U.S. to enforce the Covenant’s rights:
1.

Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

2.

Where not already provided for by existing legislative or
4

other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with
its constitutional process and with the provisions of the
present Covenant, to adopt such laws or other measures as
may be necessary to give effect to the rights recognized in
the present Covenant.
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.”4

Article 2 states unequivocally that all the ICCPR’s rights are bestowed to all
5

persons within a State’s jurisdiction and territory. It requires that signatory parties
employ all branches of government to secure the ICCPR’s enumerated rights. Article
2.1 requires that legislative bodies implement legislation to integrate the ICCPR’s
provisions into domestic law and Article 2.3 requires that “an effective remedy” be made
available to all whose rights have been violated. Article 2.3(c) requires the
administrative or executive branches enforce any remedies granted to victims of a
breach of the ICCPR’s. The U.S. is violating all three of these requirements.
Additionally, Article 47 of the ICCPR prohibits any contradictory interpretations
that might cause a breach of an obligation or hinder the fulfillment of States’ obligations.
Further, the ICCPR extends the State’s duties to all jurisdictions within each State.
5

Article 50 declares “[t]he provisions of the present Covenant shall extend to all parties
6

of federal States without any limitations or exceptions.” The U.S. is also violating these
articles.
A.

THE U.S.’S RECENT REPORTS DEMONSTRATE THE U.S.’S LACK OF
DESIRE TO COMPLY WITH THE ICCPR

The U.S.’s failure to take affirmative steps to meaningfully implement the treaty
domestically shows a lack of will to comply with its treaty obligations. This lack of will is
evidence by its failure to submit its Second Periodic Report to the UNCHR as required
on September 7, 1998. The U.S. also failed to submit the Third Periodic Report, which
was due on September 7, 2003. It was not until the Human Rights Committee
affirmatively requested, in a 27 July 2004 letter that the U.S. fulfill its treaty obligation to
report on its compliance with the ICCPR, that the U.S. submitted its report to the
Committee. The U.S. submitted a combined Second and Third Periodic Report on
October 21, 2005.
Moreover, the U.S. Department of State's supplement to the U.S. periodic
reports - - the “Updated Core Document Forming Part of the Reports of the United
States of America” (“Updated Core Document”) - - fails to acknowledge that the ICCPR
has legal significance. The Updated Core Document states that the U.S.'s legal
framework consists of the U.S. Constitution as the supreme law of the land, as well as
state constitutions, and other statutes. It fails to mention that according to Article VI of
the U.S. Constitution (which states that treaties are also the supreme law of the land),
the ICCPR is the supreme law of the land.7 The Updated Core Document states that
no treaty provision may limit the U.S. Constitution. This defensive posture shows a
6

rejection of the ICCPR, rather than an embracing of its principles (which is mandated by
the treaty). It also shows a fundamental misunderstanding of the ICCPR. The ICCPR
in no way limits the U.S. Constitution. It bestows rights that complement and enhance
the Constitution.

8

Further, the Updated Core Document states that the "United States does not
believe it necessary to adopt implementing legislation when domestic law already
9

makes adequate provision for the requirements of the treaty.”

But, not all rights

enumerated in the treaty are guaranteed by U.S. law. Indeed, the U.S. government
recognized that domestic law failed to cover the acts of torture and cruel, inhuman and
degrading treatment committed by U.S. military personnel in Abu Ghraib Military Prison
or the creation of U.S.-run secret detention facilities in Central Europe and Asia.10 This
prompted a national debate that resulted in the passing of new legislation - - the
McCain Amendment to ban cruel, inhuman and degrading treatment.11 The Bush
Administration and its supporters were hostile to the proposed bill.

12

The treaty’s

irrelevance to the U.S. was plain during the debates that preceded the legislation’s
passing. At no time during the debate was Article 7 of the ICCPR (which prohibits
torture or cruel, inhuman or degrading treatment) invoked as prohibiting the U.S.’s
actions, or imposing an obligation to refrain from such abuses.
Had the U.S. taken seriously its obligations to implement the treaty, it would not
have been necessary to enact the McCain Amendment - - given that Article 7 of the
ICCPR precludes the very abusive actions covered by the McCain Amendment.

7

B.

THE U.S. HAS FAILED TO TAKE ANY ACTION TO MEET THE ICCPR’S
IMPLEMENTATION REQUIREMENTS
Even though the U.S. has been party to the ICCPR for nearly 15 years, no

efforts have been made by the executive or legislative branches of the U.S. government
to implement the treaty provisions domestically, train its judiciary or provide remedies to
victims of violations. Further, no efforts have been made to inform the public of the
U.S.’s obligations under the ICCPR, or to ensure that the treaty is implemented on the
federal, state and local levels.
The Updated Core Document attempts to show the various ways that the U.S.
meets its obligations under the ICCPR. To demonstrate that is it meeting its
implementation requirements in educating the branches of government about the
ICCPR, the Updated Core Document refers to the State Department’s annual
publications “Treaties and International Agreement Series” (TIAS), and its re-publication
in the “United States Treaties” (UST) series. Those documents list all the international
treaties that the U.S. has signed. Further, the Updated Core Document states that the
public has access to the published records of the Senate Foreign Relations Committee
hearings, detailing the Committee’s deliberations during the Senate’s advice and
consent.13 Referencing governmental documents that merely list treaties falls short of
meeting the U.S.’s implementation obligations under the ICCPR. Clearly, no affirmative
steps have been taken to educate the public and government officials about the treaty’s
requirements, nor have any affirmative steps been taken to ensure that the ICCPR is
recognized as the law of this land.

8

The U.S. is capable of taking affirmative steps to implement the treaty.

14

The

U.S.’s failure to take any affirmative steps to implement the ICCPR is glaring when
compared to the executive branch’s aggressive promotion of policies it wishes to
implement. In recent years, the President of the United States has made it a national
priority to pass legislation in a wide variety of areas, including education, taxation, and
social security. In doing so, he spent a considerable amount of time meeting with
members of the U.S. Congress and traveling the country to win local support for the
legislation he sponsored. While discussing the issues at hand, it was clear that he was
trying to garner support for a particular program, and had open discussions with the
American people about his positions.
Implementing the treaty is a manageable task. Indeed, the U.S. does not need
to take any affirmative steps to incorporate the treaty into its laws, as many countries—
Hong Kong-S.A.R., Latvia, New Zealand, and Norway—have done.15 According to the
U.S. Constitution, Article VI, “all treaties made, or which shall be made, made under the
authority of the United States, shall be the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the Constitution or laws of any state to
16

the contrary notwithstanding.”

Therefore, the U.S. needs only to withdraw its RUDs

for the treaty to take full effect.
To implement the ICCPR, the U.S. could easily follow Canada’s example. Like
the U.S, Canada has a federalist system in which governing power is shared between
the federal government and the provinces.17 Canada’s federal government works
closely with provincial and local governments before and after the ratification of treaties
to determine how they will be implemented.18 In addition, the federal and provincial
9

governments work together to prepare reports regarding their progress with
implementing the treaty into domestic laws.

19

Although the U.S. stated that it agreed

with recommendations that it should engage in regular consultations with state
authorities to discuss implementation during its first periodic review in 1995, nothing
along these lines has been done.

20

Additionally, there is a growing citizens’ movement that the U.S. government can
work with to implement the treaty. In the past few years, citizens’ organizations and
NGOs have spearheaded efforts to pass human rights legislation, and enacted at the
municipal and state levels. For example, the city of San Francisco, California
incorporated the Convention to Eliminate All Forms of Discrimination Against Women
within its municipal code,21 and 14 states have a moratorium on the death penalty,
several of which cited international opinion in their rejection of the death penalty.22 The
U.S. government should promote such action and be involved in like pursuits nationally.
During the U.S.’s first periodic review in 1995, it assured the Committee that
“notwithstanding the non-self-executing declaration of the United States, American
courts are not prevented from seeking guidance from the Covenant in interpreting
American law”.

23

This is not the case, however. The ICCPR and international law

obligations are still not a part of the U.S legal lexicon. So much so that Federal
legislators feel free to express the hostility towards international human rights law.
Recently the U.S. Supreme Court issued several opinions recently that look and to
international law for guidance. In 2005, the U.S. Supreme Court’s decision in Roper v.
Simmons found the juvenile death penalty unconstitutional.24 The Court cited both
international law and the law of other nations in these decisions.
10

On the heels of the Roper decision, eight Senators and 47 Congressmen
introduced a measure to prohibit U.S. courts from relying upon “any . . . law, policy, or
other action of a foreign state or international organization in interpreting and applying
25

the Constitution.”

Although never debated or passed, and of questionable

enforceability, the introduction of this measure clearly shows a lack of understanding of
U.S. obligations under international law on the part of many U.S. lawmakers. It also
demonstrates an attempt by U.S. legislators to discourage judges from relying on
international law sources, including the ICCPR. This is contrary to the U.S.’s
obligations to implement the ICCPR.
The public hostility that many U.S. legislators express toward international law
appears to be limited to human rights treaties. There is little negative commentary from
Congress when Congress ratifies international treaties dealing with trade and business,
even when there is a great deal of public dissent and questioning, as in the case of
certain World Trade Organization agreements and the ratification of the North American
Free Trade Agreement.

C.

26

NO REMEDIES ARE PROVIDED FOR VICTIMS WHOSE TREATY
RIGHTS HAVE BEEN VIOLATED

Article 2.3(a), (b) and (c) of the ICCPR specifically require that victims whose
treaty rights have been violated be able to seek redress for the violations. In violation of
these basic obligations under Article 2, the U.S. continues to argue that the ICCPR is
“non-self executing,” and U.S. Courts (relying exclusively on the Senate and Executive’s
interpretation to the ICCPR) have found that the treaty does not to create a private right
11

27

of action. ”

This means that individuals whose rights are violated cannot use the

treaty itself as the basis for legal remedies in U.S. Courts.

1.

Even If The Treaty Was Non-Self Executing When It Was Enacted, The
U.S. Is Required To Pass Legislation To Implement The Treaty

There are many court opinions that have found that the ICCPR and other human
rights treaties are not self-executing.

28

These findings are contrary to the conclusions

of international law experts who believe that the U.S. is bound to fulfill its obligations
under treaties whether the treaties are self-executing or not.

29

By declaring that the

treaty is non-self-executing, the U.S. delays the fulfillment of its obligation under the
ICCPR and other international treaties.30 The U.S. has a legal obligation to promptly
enact necessary legislation to give effect to the rights in the ICCPR.31 Deeming the
ICCPR non-self executing violates the implementation requirement under Article
2.3(a).32

2.

Remedies Must Be Made Available To Those Whose Rights Have Been
Violated

U.S. Courts continue to find that the ICCPR and other human rights treaties do
not automatically bestow rights on persons within the United States and its territories,
and that plaintiffs cannot seek redress for a violation of the ICCPR in U.S. Courts.
U.S. federal courts time and time again have looked to U.S. treaty reservations
to find that the ICCPR and other human rights treaties are not enforceable.33 Federal
courts consistently defer to the legislative and executive branches’ interpretations of
12

treaties that incorporate reservations against self-execution, ignoring their constitutional
34

duty to interpret the treaty law

by examining the plain language of the treaty.

35

It is

troubling that the U.S. continues to refuse to acknowledge human right treaties as part
of our legal framework. As other reports will show, U.S. law falls short of protecting the
full range of Covenant rights, and judicial and legislative action have undermined
severely access to judicial remedies.
While it is encouraging that the U.S. Supreme Court has affirmed the importance
of customary international law36 and looked to international law for guidance in
interpreting the U.S. Constitution as it applies to some of the most important social
issues in the U.S. (including the death penalty, affirmative action, and the rights of gays
and lesbians),37 the Supreme Court has not used the ICCPR to define the U.S. legal
obligations.
It is not surprising that the judiciary has failed to recognize the important role
that it has in implementing the ICCPR. Despite the U.S.’s agreement during its first
periodic review that the Federal Judiciary Center and state judicial centers should be
used to increase judicial awareness of the Covenant,

38

no government-funded training

has been provided to judges on the ICCPR or other human rights treaties.

39

Instead,

non-profit organizations have taken the lead in training the judiciary about U.S. treaty
obligations and customary international law. For example, the American Society of
International Law Judicial Outreach Program provides U.S. federal and state-level
judges workshops on the domestic application of international treaties and customary
law.40 Further, the National Association of Women Judges offers educational courses
in the application of international treaties and customary law as well as how to draw
13

from international legal decisions in their state and federal decision making.

41

Additionally, The Justice and Society Program at the Aspen Institute, a non-profit policy
and advocacy organization, offers seminars for leaders from the U.S. government, the
private sector, and nongovernmental and intergovernmental agencies on international
law, international norms and human rights. Further, the Institute offers seminars to U.S.
federal judges in international and human rights law. To date, most of those efforts
have dealt almost exclusively with customary international law principles and their
application to immigrants through the use of the Alien Tort Statute / Alien Tort Claims
Act (ATS or ATCA).
It is imperative that the U.S. government incorporate training about the ICCPR
and international law into its own formal trainings for judges. Further, as part of its
efforts to implement the ICCPR, the U.S. Solicitor General’s Office could begin filing
amicus briefs discussing the treaty in appropriate domestic cases. Such an action
would alert the judiciary to the U.S.’s obligations to enforce this treaty.

II.

RAMIFICATIONS OF THE UNITED STATES’ FAILURE TO IMPLEMENT THE
ICCPR
The U.S. appears to employ a double standard in relation to human rights and

human rights treaties. The U.S. was instrumental in forming the United Nations, and in
drafting many human rights treaties. Moreover, the U.S. State Department issues
annual human rights report cards discussing the human rights records of countries
throughout the globe. The U.S. Congress uses these reports as the basis for
determining funding to other nations. The U.S. has also portrayed itself as a global
14

promoter of human rights, and a righteous critic of nations that do not respect human
rights.
What should go hand in hand with promoting and defending human rights
globally is an obligation abide by the very human rights standards that the U.S. criticizes
other countries for ignoring. Ratifying the ICCPR, and then enacting RUDs that
emasculate it fall well-short of doing so. This leads to the loss of the U.S.’s moral
authority to criticize human rights abusers, and can also embolden nations to ignore
their own human rights treaty obligations
Moreover, in invoking sovereignty when questioned about both its failure to
implement the ICCPR, and its own potential violations of the ICCPR, the U.S. places
itself above the law of the global community. Doing so can only embolden other
nations to do the same.
Part of the U.S.’s obligations in ratifying the ICCPR is an obligation to abide by
and implement legal norms, and norms of conduct that respect human rights, as
international norms, that are defined by the international community. It goes against
the spirit and letter of the ICCPR to respect only those norms that happen to coincide
with U.S. domestic protections. Therefore, it is critical for the U.S. to recognize torture,
cruel inhumane and degrading treatment, and other human rights abuses as human
rights abuses. Recognizing human rights abuses as such is the first step in
implementing the ICCPR. It alerts all citizens and all levels of government that the U.S.
has obligations under the treaty. It also places a duty on the U.S. to remedy violations
of the ICCPR, rather than to limit its enforcement of human rights only to those rights
that might also be protected by U.S. law.42
15

CONCLUSIONS
Other reports will detail the many human rights abuses in which the U.S.
engages, and will discuss the specific provisions of the ICCPR that the U.S. has
violated and continues to violate. Although, it is unclear whether these wide-scale
abuses would exist if the ICCPR had been fully implemented, it is clear that had the
treaty been implemented the victims of human rights abuses could invoke the ICCPR
and claim redress for violations of their human rights. The U.S.’s failure to implement
the treaty creates a culture in which abuses for which there is no constitutional or other
domestic legal remedy go unchecked, without appropriate judicial redress. Given the
multitude of violations documented in this report, the U.S. legal system is not
adequately responding to remedy these injustices.
We urge the Committee to recommend that the U.S. take the following steps to
comply with the ICCPR:

1.

Withdraw the U.S. RUDs to the ICCPR. As a first step, the U.S. should withdraw
its reservation to Article 6 (the juvenile death penalty), as that reservation has
been rendered obsolete by the U.S. Supreme Court.

2.

Establish a federal-level commission much like Canada’s to implement the
treaty on the federal, state and local levels.

3.

Provide immediate training to legislators, judges and members of the executive
branch on the U.S. obligations under the ICCPR.

4.

Issue implementing legislation to breathe life into the ICCPR, and allow it to be
invoked in a court by victims of human rights violations.

5.

Create a formal review body that will monitor the U.S.’s compliance with the
16

ICCPR and that will make recommendations to the implementation
commission (described in 2. above) about how to remedy any deficiencies.
We thank the Committee for its consideration of this report in evaluating the U.S.’s
compliance with the ICCPR.

1

Concluding Observations of the Human Rights Committee: United States of
America: March 10, 1995.
2

Office of the High Commissioner on Human Rights, Concluding Observations
of the Human Rights Committee: United States of America, U.N. Doc
CCPR/C/79/Add.50,A/50/40, Paragraph 279(1995). U.S. Reservation limiting
application of Art. 7 to the extent that cruel, inhuman or degrading treatment prohibited
by the 5th, 8th and/or 14th Amendment.
3

Roper v. Simmons, 543 U.S. 551 (U.S. 2005).

4

International Covenant on Civil and Political Rights. G.A. res. 2200A(XX1), 21
U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered
into force Mar. 23, 1976.
5

See Human Rights Committee, General Comments 23, Paragraph 5.1, 50th
Session, 1994. “In this regard, the obligations deriving from Article 2.1 are also
relevant, since a State party is required under that article to ensure that the rights
protected under the Covenant are available to all individuals within its territory and
subject to its jurisdiction, except rights which are expressly made to apply to citizens, for
example, political rights under article 25.”
6

Id. at Article 50.

7

U.S. Department of State. "Updated Core Document Forming Part of the
Reports of the United States of America." Bureau of Democracy, Human Rights and
Labor, October 21, 2005. III. GENERAL FRAMEWORK FOR THE PROTECTION OF
HUMAN RIGHTS, A. Legal Framework, Statutes, Section 132. There is no single
statute or mechanism by which basic human rights and fundamental freedoms are
guaranteed or enforced in the United States legal system. Rather, domestic law
provides extensive protection through enforcement of the constitutional provisions cited
above and a variety of statutes, which typically provide for judicial and/or administrative
remedies.

17

8

Id. at III. GENERAL FRAMEWORK FOR THE PROTECTION OF HUMAN
RIGHTS, D. Human Rights Treaties, Treaties As Law, Section 154. Also, treaties as
well as statutes must conform to the requirements of the Constitution. Reid v. Covert,
354 U.S. 1 (1957). Thus, the United States is unable to accept a treaty obligation which
limits constitutionally protected rights, as in the case of Article 20 of the International
Covenant on Civil and Political Rights, which infringes upon freedom of speech and
association guaranteed under the First Amendment to the Constitution.
9

U.S. Department of State. "The Updated Core Document Forming Part of the
Reports of the United States of America." at III. GENERAL FRAMEWORK FOR THE
PROTECTION OF HUMAN RIGHTS, D. Human Rights Treaties, Implementation,
Section 157.
10

Priest, Dana. “CIA Holds Terror Suspects in Secret Prisons;
Debate Is Growing Within Agency About Legality and Morality of Overseas System Set
Up After 9/11.” Washington Post. P A1. Wednesday, Nov 2, 2005. Found at:
http://www.washingtonpost.com/wpdyn/content/article/2005/11/01/AR2005110101644.html.
11

The revelations of U.S. military engaging in torture and CID acts prompted
Senator John McCain, a former prisoner of war, to propose Amendment SA. 1977 (IH)
to the Defense Appropriations Bill for 2006, H.R. 2863 to ban CID treatment (the
McCain Amendment). Despite the Bush Administration and its supporters’ vociferously
denied its legal obligations to prevent CID treatment as well as the U.S.’s past
participation in torture and CID activities. Slowly, as the public rallied behind the
McCain Amendment, the Bush Administration amended its position to reiterate the
U.S.’s commitment to preventing torture and CID treatment. On December 17, 2005
the FY 2006 Defense Spending Bill with (Sec. 9011) the McCain Amendment attached.
12

At first the White House reacted with a threat to veto the bill should the Amendments
survive as written. Vice President Cheney rejected the Amendment arguing that the
CIA should not be restricted in its use of interrogation techniques. Priest, Dana and
Robin Wright. “Cheney Fights for Detainee Policy; As Pressure Mounts to Limit
Handling Of Terror Suspects, He Holds Hard Line.” Washington Post. P A1. Monday,
Nov. 7 2005. http://www.washingtonpost.com/wpdyn/content/article/2005/11/06/AR2005110601281.html. Kessler, Glenn and Josh
White. “Rice Seeks To Clarify Policy on Prisoners; Cruel, Inhuman Tactics By U.S.
Personnel Barred Overseas and at Home.” Washington Post. P A1. December 8, 2005.
http://www.washingtonpost.com/wpdyn/content/article/2005/12/07/AR2005120700215.html.
See also Sen. Feinstein’s Letter to Attorney General Alberto Gonzales quoting Sec.
Rice’s statement: “As a matter of U.S. policy, the U.S. obligations under the CAT, which
prohibits cruel, inhuman and degrading treatment --- those obligations extend to U.S.
personnel wherever they are.”
18

13
14

Id. at IV. Information and Publicity, Sections 158 - 159.
ICCPR, Art 2.2.

15

In 1991, China’s Self Autonomous Region of Hong Kong directly enacted the
ICCPR as its Bill of Rights. After declaring independence Lativa issued its "Declaration
on the Accession of the Republic of Latvia to International Instruments Relating to
Human Rights.” New Zealand’s Bill of Rights Act of 1990 affirms the ICCPR but does
not implements it directly. In 1999, Norway passed the “Relating to the Strengthening
of the Status of Human Rights in Norwegian Law" (the Human Rights Act) incorporates
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
ICCPR and its two protocols into Norway’s domestic law.
16

U.S. Constitution, Article VI.

17

Constitution Act, 1867 (U.K.) 30 & 31 Vict. C.3, reprinted in R..S.C. 1985, App.

II. No. 5.
18
19

1999 Can.Su.Ct. LEXIS 44, 2-3 (Can. Sup. Ct. 1999).
1999 Can.Su.Ct. LEXIS 44, 8-9 (Can. Sup. Ct. 1999).

20

Summary Record of the 1405th meeting: United States of America. 24.04.95.
CCPR./C/SR.1405 (Summary Record) ¶ 4 (Comments of Mr. Shattuck). See Summary
record of the 1401st meeting: United States of America. 17/04/95. CCPR/C/SR.1401
(Summary Record), ¶36 (Comments of Mrs. Evatt); Sumary record of the 1402nd
meeting: United States of America. 17/04/95. CCPR/C/SR.1402 (Summary Record),
(Comments of Mr. Lallah).
21

Schneider, Elizabeth, Anna Hirsch Lecture: Transnational Law As A Domestic
Resource: Thoughts on the Case of Women’s Rights, 38 New England L. Rev. 689,
720-721(2004).
22

Powell, Catherine, Social Movements and Law Reform: Dialogic Federalism:
Constitutional Possibilities for Incorporations of Human Rights Law in the United States.
150 U. Pa L. Rev. 245, (2001).
23

Concluding Observations of the Human Rights Committee: United States of
America. 3/10/95. CCPR/C/79/Add.50;A50/40, paras. 266-304. (Concluding
Observations/Comments), ¶ 279; Summary Record of the 1405th meeting: United
States of America. 24.04.95. CCPR./C/SR.1405 (Summary Record) ¶ 7 (Comments of
Mr. Harper). See Summary record of the 1402nd meeting: United States of America.
17/04/95. CCPR/C/SR.1402 (Summary Record) (Comments of Mr.Bhagwati)

19

24

Roper supra note 3.

25

S.520 and H.R.1070 were both referred to Committee in April 2005.

26

de la Vega, Connie. Human Rights and Trade: Inconsistent Application of
Treaty Law in the United States, 9 UCLA J. of Int’l L. and Foreign Affairs. 1, 3 - 4
(2004) (arguing that there is no reason to treat human rights treaties differently than
trade agreements). Neil D. Hamilton, Legal Issues Shaping Society's Acceptance Of
Biotechnology And Genetically Modified Organisms, 6 Drake J. Agric. L. 81, 102
(arguing that public demonstrations about the safety of GMO foods that arose in the
Seattle WTO talks illustrate how international institutions will not be free of the social
concerns that exist relative to biotechnology). See also Gregory Schaffer, The World
Trade Organization Under Challenge: Democracy and the Law and Politics of the
WTO's Treatment of Trade and Environment Matters, 25 Harv. Envtl. L. Rev. 1
(demonstrating that most northern environmental activists advocate the adoption of a
stakeholder model precisely because the model is not operational within the WTO).
27

ICCPR at Article 47.

28

Jogi v. Voges, 425 F. 3d 367 (7th Cir. 2005)(Concerning the Vienna
Convention on Consular Relations, hereinafter “The Vienna Convention”); Auguste v.
Ridge, 395 F. 3d 123 (3d Cir. 2005)( concerning the Convention Against Torture,
hereinafter “CAT”) and Atuar v. U.S., 2005 U.S. App. LEXIS 25417 (4th Cir. Nov 23,
2005)(Concerning CAT) Ogbudimkpa v. Ashcroft, 342 F. 3d 207 (3d Cir.
2004)(Concerning CAT); Iguarta-De La Rosa v. U.S., 417 F. 3d 145 (1st Cir.
2005)(Concerning the International Covenant on Civil and Political Rights, hereinafter
ICCPR); Goldstar v. U.S., 967 F. 2d 965 (4th Cir. 1992)(Concerning the Hague
Convention Respecting the Law and Customs of War on Land, hereinafter “The Hague
Convention”).
29

Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs, Columbia
University Press, p. 63 (1990).
30

Id.

31

Id. See also Restatement (Third) Foreign Relations Law of the United States
§ 111, Reporter’s Note 5.
32

87 C.J.S Treaties 9.

33

See supra note 20.

34

Auguste v. Ridge, the Third Circuit Court refused to interpret the CAT based
on international understandings and looked only to domestic interpretations through
20

implementing legislation and D/R/U’s. 395 F. 3d 123, 136-137. Similarly, in Iguarta-de
la Rosa, the court deferred to the Executive and Legislative Branches’ expertise in
foreign relations. The court expressed skepticism at the judiciary’s authority to “second
guess” “the discretion of the Legislative and Executive Branches in managing foreign
affairs” and cited an example from the Supreme Court’s decision in Sosa v. AlvarezMachain where the Court held that the ICCPR was a non-self executing treaty that did
not create judicially enforceable rights. 417 F. 3d at 150 (Citing Sosa v. AlvarezMachain, 542 U.S. 692, 734 (2004).
35

87 C.J. S Treaties § 9.

36

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004).

37

Roper v. Simmons, 543 U.S. 551 (U.S. 2005); Lawrence v. Texas, 539 U.S.
558 (U.S. 2003); Grutter v. Bollinger, 539 U.S. 306 (U.S. 2003).
38

Summary Record of the 1405th meeting: United States of America. 24.04.95.
CCPR./C/SR.1405 (Summary Record) ¶ 5 (Comments of Mr. Shattuck).
39

The Federal Judicial Center was created by a mandate of Congress in 1967 to
offer federal judges and staff education and training, however, none of the official
trainings offer assistance in the understanding or application of the ICCPR. For more
information on the Federal Judicial Center see http://www.fjc.gov/public/home.nsf.
40

ASIL is the leading non-profit organization in the United States on matters of
international law. ASIL offers twenty seminars throughout the year on different aspects
of international law, including “The Role of International Law in U.S. Domestic Courts:
An Overview,” including discussion of treaty law. ASIL would be a major resource for
any U.S. government agency’s attempt to create a program for judicial training on
international treaty law. Available at http://www.asil.org/judicial/workshops.html.
41

See The National Association of Women Judges. Found at:
http://www.nawj.org/education/programs.html.
See:http://www.aspeninstitute.org/site/c.huLWJeMRKpH/b.612043/k.8BEB/Justice_and
_Society_Program.htm. Unfortunately, the American Bar Association, ABA, does not
have an initiative to educate and train the U.S. judiciary in the obligations and rights
secured under the ICCPR, although it runs an ICCPR training program through its
Central European and Eurasian Law Initiative. See
http://www.abanet.org/ceeli/special_projects/iccpr/home.html.
42

See also, Harold Hongju Koh, On America’s Double Standard: The Good and
Bad Faces of Exceptionalism, 1 October 2004. Available at:
http://www.prospect.org/web/printfriendly-view.ww?id=8558.

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