The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties

Abstract

Since 1992, the United States has become a party to three major human rights treaties: the International Covenant on Civil and Political Rights, the Torture Convention, and the Race Convention. For each of the three treaties, the U.S. instrument of ratification included a declaration stating that the substantive articles of the treaty are "not self-executing" ("NSE declarations"). Numerous commentators have criticized the NSE declarations on policy grounds. A few have argued that they are invalid. Virtually all commentators agree, either explicitly or implicitly, that the declarations, if legally valid, preclude U.S. courts from applying human rights treaty provisions directly to resolve cases involving alleged human rights treaty violations by federal, state, or local governments or officials. This Article is concerned with the proper interpretation of NSE declarations. The term "not self-executing, "when applied to treaty provisions, has multiple meanings. Unfortunately, despite an extensive body of literature describing ambiguities in the usage of the terms "self-executing" and "not-self-executing," commentaries about the NSE declarations have tended to proceed from the (usually unstated) assumption that the meaning of the term "not self-executing" is unambiguous. This Article attempts to remedy that oversight. The Article analyzes the significance of the NSE declarations for cases raising treaty-based human rights claims-that is, claims by individuals that their human rights, as defined in the treaties, have been violated by federal, state, or local governments or officials. The Article's central thesis is that the NSE declarations, properly construed, permit courts to apply the treaties directly to provide a judicial remedy in some, but not all, cases that raise meritorious treaty-based human rights claims.