From: rich@pencil.cs.missouri.edu (Rich Winkel)
Subject: US Senate ratifies UN HR Convention
Followup-To: alt.activism.d
Originator: rich@pencil.cs.missouri.edu
Organization: PACH
Date: Wed, 30 Sep 1992 23:58:47 GMT

/** justice.usa: 343.0 **/
** Topic: US Senate ratifies ICCPR **
** Written  4:07 pm  Sep 30, 1992 by hnaylor in cdp:justice.usa **
From: Hilary Naylor <hnaylor>
Subject: US Senate ratifies ICCPR

/* Written  4:07 pm  Sep 30, 1992 by hnaylor in cdp:ai.general */
/* ---------- "US Senate ratifies ICCPR" ---------- */
U.S. SENATE RATIFIES U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS

by Naomi Roht-Arriaza
Board of Directors, Human Rights Advocates
P.O. Box 5675, Berkeley, CA 94705

With little fanfare, on April 2 the United States senate gave its
advice and consent to US ratification of the United Nations
Covenant on Civil and Political Rights.  The Covenant was opened
for signature in 1966, and had been presented for ratification by
the Carter Administration in 1978.  No action was taken at that
time; the incoming Reagan administration refused to ask for
ratification of the Covenant.  The Bush Administration reopened
the process of ratification of human rights treaties, starting
with the Genocide Convention in 1986 and the Convention Against
Torture in 1990.

U.S. ratification of the Covenant increases the visibility and
credibility of the global human rights reporting and monitoring
process, and may encourage other countries to ratify.  The U.S.
will be subject to periodic reporting under Article 40 under
which it must submit reports to the Human Rights Committee (an
initial report next year, and then every five years).  The
Committee, made up of human rights experts, may question U.S.
officials on the report and make general comments.  The U.S. also
accepted the competence of the Committee to receive interstate
complaints that it is not fulfilling its obligations.  The
interstate complaint procedure has not to date been used.  The
U.S. did not, however, take the necessary steps to allow the far
more frequently used individual complaint procedure -- doing so
requires signing the Optional Protocol to the Covenant.

On the other hand, the package of reservations, understandings,
declarations and provisos attached tot he ratification means
practically no changes in current U.S. state or federal law. 
Indeed, the only change contemplated is that, while the U.S.
reserves the right to execute young people under 18 years old, it
may no longer execute pregnant women.

The reservations package includes a general proviso that the
substantive articles of the Covenant  are not self-executing
(i.e. they require implementing legislation before they can be
enforced in U.S. courts).  In addition, the package covers:

- free speech and association: the Covenant requires states to
prohibit war propaganda and "advocacy of national, racial or
religious hatred that constitutes incitement to discrimination,
hostility or violence."  The U.S. will not apply this provision
to the extent it conflicts with constitutional provisions
allowing such advocacy.

- cruel, inhuman and degrading treatment: as with the Torture
Convention, the reservation applied to the prohibition only to
the extent required by the constitution;

- criminal procedure: the U.S. reserves the right to execute
juveniles and to treat them as adults in exceptional
circumstances.  In addition., understanding would avoid any
changes in U.S. law regarding limitations on the right to
counsel, on the right of a defendant to compel witnesses, on the
"separate sovereign" doctrine of double jeopardy allowing trial
by both the federal government and the state for the same
conduct, and on pretrial detention.

- compensation for official wrongdoing: the Covenant provides for
compensation for victims of unlawful arrest or detention or a
miscarriage of justice.  The U.S. interprets this to mean only
that a civil suit must be available as a remedy.

- discrimination: the Covenant prohibits discrimination on a wide
range of grounds.  Some of these, like race, are subject to
strict scrutiny under U.S. law,. while others are subject to the
much lower rational basis standard.  The U.S. understands that
discrimination on the enumerated bases is permitted "when such
distinctions are, at minimum, rationally related to a legitimate
governmental objective."

The effect of the reservations package is to preclude any change,
however minimal, in current U.S. law.  Scholars and human rights
organizations have long argued that such sweeping reservations
are both unnecessary and unwise, setting an unfortunate precedent
for other countries.  In addition, reservations to non-derogable
articles of the Covenant, like those relating to the right to
life (Article 6), may be incompatible with the object and purpose
of the treaty and thus be inadmissible.*  Moreover, once the
treaty is ratified with this set of reservations and
understandings, those reservations and understandings become the
authoritative interpretation of the rights at issue in U.S.
courts, replacing what may be a more expansive definition of the
rights at issue existing under customary law.  Indeed, some human
rights scholars now believe it is preferable for the U.S. not to
ratify human rights treaties at all than to ratify them with the
current package of conditions.
_______________
* A 1984 Advisory Opinion on similar provisions of the American
Convention on Human Rights held that a reservation designed to
enable a State to suspend a non-derogable fundamental right (like
the right to life) must be deemed incompatible with the object
and purpose of the []Convention...Advisory Opinion on
Restrictions to the Death Penalty, I.A. Ct. H.R., OC3/83, ser. A,
No. 3, para. 61, reprinted in 23 I.L.M. 320 (1984).

Reprinted by permission from _Human Rights Advocates Newsletter_
July 1992.
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