Academic journal article Chicago Journal of International Law

Should International Human Rights Law Trump US Domestic Law?

Academic journal article Chicago Journal of International Law

Should International Human Rights Law Trump US Domestic Law?

Article excerpt

I. INTRODUCTION

Consider the following claims raised in US courts under the International Covenant of Civil and Political Rights ("ICCPR")1, a treaty ratified by the United States:

* Nevada sentenced Michael Domingues to death for murdering two people when he was sixteen years old. Domingues argued that his sentence, though valid under the Eighth Amendment, should nonetheless be set aside because it violated Article 6(5) of the ICCPR.2 Article 6(5) prohibits capital punishment for crimes committed under the age of eighteen.

* Lawrence and Beverly Newman sued state officials involved in proceedings related to the Newmans' adoption of two children. The Newmans argued that Article 2(3)(a) of the ICCPR overrode otherwise-applicable state and federal immunities.3 In Article 2(3)(a), each signatory nation promises 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."

* Several unlicensed radio operators have challenged Federal Communications Commission ("FCC") licensing requirements under Article 19(2) of the ICCPR.4 Article 19(2) provides that "[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds ... through any other media of his choice."

* Several plaintiffs in Washington state have argued that the Washington Persistent Offender Accountability Act, otherwise valid under state and federal law, violates Article 10(3) of the ICCPR.5 Section 10(3) provides that "(t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation."

* An organizer of educational trips argued that federal restrictions on travel to Cuba violated Article 12(3) of the ICCPR, which requires travel restrictions to be "necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others."6

* Fleming Ralk alleged that Georgia officials violated Article 10(1) of the ICCPR when they denied him, as a prisoner awaiting trial, access to adequate reading materials, clothing, and medical attention.7 Article 10(1) provides that "[a]fl persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

* Rene Benitez was extradited to the United States for crimes committed against US officials in Colombia. Benitez had already been convicted and incarcerated for the crime in Colombia. He alleged that his subsequent prosecution in the United States, though consistent with US law, violated Article 14(7) of the ICCPR.8 Article 14(7) provides that "[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."

In all these cases, the party invoking the ICCPR claims that (a) the treaty provides broader individual rights protection than domestic law and (b) the treaty rights should apply in the domestic realm to invalidate governmental action that is otherwise valid under state and federal law. These claims have an initial plausibility. Article VI of the US Constitution makes treaties the supreme law of the land that, if self-executing, bind the President and supersede prior inconsistent state and federal law. And the broad language of the ICCPR provides colorable support for the claims on the merits.

Nonetheless, US courts reject these claims under the ICCPR, usually without consideration of their merits. The main reason they do so is that the President and Senate have attached conditions to US ratification that preclude the ICCPR from being a source of domestic law. The United States has attached similar conditions to the other modern human rights treaties it has ratified-the Genocide Convention, the Torture Convention, and the Race Convention. …

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