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conditional obligation; it applies only if the national legal system does not already contain adequate implementation measures. Since paragraph 3 refers to remedies in individual cases, it is reasonable to assume that the measures envisioned by paragraph 2 must be of general application. These measures need not be legal enactments, but they must in any event be consistent with the Covenant. It is less certain how much time a State has to comply with paragraph 2 (as opposed to paragraph 1, which lays down an immediate obligation); a certain "elasticity' or grace period was indeed presupposed by the drafters, but there was no agreement as to its length. C. The obligation to provide for measures of implementation to be taken in individual
According to paragraph 3 of Article 2, a State Party is bound to implement the Covenant in individual cases, by providing for effective domestic remedies in cases of violation of the rights stated in the treaty. This is also an additional obligation; to belabor a previous example, a State must not only (i) refrain from imposing torture, and (ii) forbid the infliction of torture by others; it must also (iii) provide an effective remedy to victims of torture. The obligation imposed by paragraph 3 is spelled out in three subparagraphs, dealing respectively with the existence of the remedy, the institutional arrangement set up to pass upon the claim, and the enforcement of the decision which grants the remedy.
Subparagraph (a) states that a State Party must “ensure that any person whose rights or freedoms as recognized (in the Covenant) are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity.” This provision indicates that, quite apart from the enforcement of paragraph 2 measures by public action-i.e., at the initiative of public officials—the State must provide for a system of enforcement by private action. But the precise content of such a system, that is, the precise meaning of "effective remedy", is far from clear. First, it is uncertain whether the State fulfils its obligation by simply empowering the victim to set the criminal process in motion, or whether the State must also provide for a civil action seeking monetary compensation. In either case, subparagraph (a) suggests that when the violation was committed by a person acting in an official capacity, a plea of higher orders affords no valid excuse. Second, if the concept of an effective remedy does include a civil action and the violation was committed by a person acting in an official capacity, it is uncertain whether a civil action against the agent will suffice, or whether a civil action against the State is also required. In other words, it is not clear whether systems of total or partial State immunity from process (such as the one in force in the United States) are in breach of this provision.
Under subparagraph (b), a State Party must ensure that any person claiming the remedy mentioned by subparagraph (a) “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 This provision covers all institutional arrangements; if in a State Party, the courts refuse to take cognizance of certain cases (e.g., our “political questions” doctrine), the State is still under an international obligation to provide an alternative mechanism (legislative, administrative, or otherwise) for the determination of the claim. Further, the State is also obligated “to develop the possibilities of judicial remedy,” which probably entails a prohibition to limit existing judicial competence over the matters regulated by the Covenant.
Finally, according to subparagraph (c), a State Party must "ensure that the competent authorities shall enforce such remedies when granted.” If under subparagraph (a) a civil remedy against the State is required, or if such remedy is granted, the State must not make itself immune from enforcement or execution.
II. OBLIGATIONS ARISING FROM THE INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
The general substantive obligations imposed by the International Covenant on Economic, Social and Cultural Rights are stated in its Article 2. Paragraph 1 contains a basic duty of progressive implementation, and paragraph 2 an additional duty consisting in a guarantee of non-discrimination. Other substantive obligations are laid down by some of the specific provisions of Part III of the Covenant, as well as by Article 1. The procedural obligations relating to international implementation of the Covenant will not be discussed here. A. The obligation of progressive implementation
5 See U.N. Doc. A/2929, pp. 17-18, paras. 9–10.
6 The French and Spanish texts of the Covenant are quite clear to this respect. The expressions used "recours utile", "recurso efectivo”-have a definite procedural connotation. However, they are as ambiguous as the English phrase as regards the problem noted further down in the text, International Covenant on Civil and Political Rights, Art. 2, par. 3(a) French and Spanish texts.
According to paragraph 1 of Article 2, each State Party "undertakes to take steps, individually and through international assistance and cooperation especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures. This provision embodies the principle of progressive implementation: in principle, the rights recognized in the Covenant are not the counterpart of duties to be performed at once; they are goals to be achieved progressively. Withal, there is an obligation to take steps, in the terms of paragraph 1, towards the full realization of these rights. The reason for this approach is that most of the rights set forth in this Covenant require not a mere abstention on the part of the State, but positive action, which depends on the availability of resources. It has been argued that developed countries (which have greater resources) are therefore bound to achieve higher levels of implementation at an accelerated pace.
The text of paragraph 1 is not quite clear as to the effect of the “International assistance and cooperation" clause. Most probably, this clause was not intended to obligate developed States to provide assistance to developing countries; it was added merely to recognize the special needs of the latter (which are relevant to the question of progressive implementation), and to indicate that the "available resources” of a State include those received from abroad.? B. The obligation to guarantee non-discrimination
Paragraphs 2 and 3 of Article 2 and Article 3 prohibit discrimination in regard to certain improper criteria. These provisions will not be discussed here; it must be noted, however, that these duties of non-discrimination are not subject to the principle of progressive implementation. It was made clear in the preparatory work that at every level of achievement, the rights set forth in this Covenant should be enjoyed without discrimination. C. The specific obligations of part III
In Part III of the Covenant, the State Parties "recognize” certain rights (e.g., Arts. 6(1), 7, 9, 10, 11, 12, 13(1) and (2), 15(1) and sometimes specify the steps to be taken toward the full realization of these rights (e.g., Arts. 6(2), 12(2), 15(2)). In these cases the rights "recognized” are the rights which must be implemented progressively, and the specified steps are the steps to be taken according to Article 2, paragraph 1. In other cases, however, the State Parties “undertake to ensure” a right (Art. 8) or "undertake” to perform or refrain from performing certain actions (Arts. 13(3), 14, 15(3)). In these cases the drafters intended to impose additional obligations free from the principle of progressive implementation of Article 2, that is, obligations which must be discharged in full and at once.. Notice that except for Article 14, which imposes a positive obligation to work out and adopt a certain plan of action, the other obligations of this type are negative, i.e., can be discharged by simple inaction.10
DEPARTMENT OF STATE,
Washington, D.C., February 6, 1980. Hon. Jacob K. JAVITS, U.S. Senate.
DEAR SENATOR JAVIts: This is in response to your letter of January 15 concerning the self-executing nature of the international human rights treaties and the protection of the right to own private property under the International Covenant on Economic, Social and Cultural Rights.
Before addressing your specific questions it may be useful to note certain general principles. Under U.S. law a self-executing treaty provision, like a statute, may be applied directly by the courts as a rule of decision in a particular case. A treaty provision that is non-self-executing may not be enforced directly by the courts, but rather requires implementing legislation. Foster v. Heilson, 27 Ŭ.S. 253, 314 (1829). Whether a particular treaty provision is self-executing depends upon the intent of the parties—i.e., whether they intended that the treaty be applied directly as if it were a statute, or that it be applied only indirectly through implementing legislation. The intent of the parties may be established by reference to the terms of the treaty and to its legislative and drafting history. 15 Whiteman Digest of International Law 302–16 (1970).
7 See U.N. Doc. A/2929, p. 20, par. 24. & See ibid., par. 27.
See ibid., par. 22. More specifically, see U.N. Docs. E/CN.4/SR.271, p. 4; SR.272, pp. 4, 8, 9, 13; SR.273 pp. 8–9; SR.274, pp. 4, 11; SR.275, pp. 5–6.
10 The verb "to ensure" in Art. 8 of this Covenant should be interpreted in the same way as its counterpart in Art. 2 of the Covenant on Civil and Political Rights. Supra
Many international agreements entered into by the United States provide expressly that the parties are to enact legislative or other measures to implement the substantive provisions of such agreements. Under U.S. practice these agreements are normally treated as non-self-executing. If the necessary legislative or other measures are already in force when the treaty or agreement is ratified by the United States, then new legislation will obviously not be required. Such treaties or agreements will nevertheless be interpreted as non-self-executing by the courts, which will apply the prior legislation as providing the rule of decision in cases before them.
Against this background our responses to your questions are as follows:
1. In our judgment the substantive provisions of the four human rights treaties submitted to the Senate in February 1978 are in and of themselves non-self-executing. This judgment is based upon the intention of the drafters of the treaties as reflected in the texts and in the drafting history.
For example, Article 2(2) of the Covenant on Civil and Political Rights states that:
"Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps . to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant."
This provision on its face contemplates the enforcement of the treaty rights through existing or newly adopted domestic laws. That this was intended by the drafters is apparent from the official annotation of the draft Covenant prepared by the United Nations Secretary General in 1955. There it was stated that Article 2(2) of the Covenant on Civil and Political Rights "made it clear that the obligation to give effect to the rights recognized in the covenant would be carried out by States through the adoption of legislative or other measures.” (10 U.N.G.A.O.R. Annexes, Agenda Item 28 (pt. II), U.N. Doc. A/2929, p. 18 (1955); emphasis added.)
The Secretary-General's official annotation points out that those states contending that the substantive provisions of the Covenant should be directly enforceable upon ratification were opposed to the adoption of Article 2(2). Ibid., p. 17.
Similarly, Article 2(1) of the Covenant on Economic, Social and Cultural Rights requires parties “to take steps with a view to achieving progressively the full realization of the rights recognized in the present Convention by all appropriate means, including particularly the adoption of legislative measures.
Article 2 of the Convention on the Elimination of Racial Discrimination requires Parties to eliminate racial discrimination “by all appropriate means, including legislation as required by circumstances..
Article 2 of the American Convention on Human Rights provides that where the rights or freedoms recognized therein are “not already ensured by legislative or other provisions, the States Parties undertake to adopt . . . such legislative or other measures as may be necessary to give effect to those rights or freedoms.”
The 1970 report of the U.S. Delegation to the Inter-American Conference that adopted the American Convention stated that "it is not the intention of the U.S. to interpret the articles of the treaty in Part I (the substantive articles) as being self-executing." 9 Intl Legal Materials 715 (1970).
Thus the intention as to all four treaties appears to have been that they should be regarded as non-self-executing.
2. The non-self-executing declaration proposed by the Departments of State and Justice does not automatically render the treaties non-self-executing. Rather the proposed declaration, as applied to each of the four treaties, constitutes further evidence of the U.S.'intention, as manifested in the texts of the treaties and in their negotiating history, to interpret the treaties as non-self-executing. In the United States the final determination as to whether a treaty is self-executing or not is made by the judiciary, and it is the intention of the parties as found by the courts, rather than declarations attached to the resolution of ratification, that would'render the human rights treaties non-self-executing. The proposed declaration would, of course, be a significant indication of U.S. intent.
3. and 4. A Senate declaration that the substantive provisions of the treaties are non-self-executing would not by itself be legally binding on the courts, although it would probably be accorded great weight. Should the courts determine that the treaties are non-self-executing, then U.S. citizens bringing legal suits alleging human rights violations would not be able to rely directly on the provisions of the treaties. Rather, both they and the courts would look to the U.S. Constitution, legislation, and judicial interpretations thereof as providing the rules for decision. Interpretation of the treaties as non-self-executing, could be important in instances where U.S. statutes and the Covenants, while establishing substantially similar rights, are differently worded. Private parties bringing suits and the courts could, of course, refer to the treaties as guides to the proper interpretation of U.S. law if they so wished.
5. When a treaty is non-self-executing, a state party is obligated to adopt legislation or other measures to implement the treaty's provisions to the extent that its domestic law does not already do so. U.S. law already provides for almost all of the rights recognized in the four treaties, and in the few instances where it does not, the Departments of State and Justice have recommended reservations to the treaties. It was felt that any changes in U.S. domestic law in this area should be accomplished through the normal legislative process, including policy consideration by the concerned Congressional committees. Therefore, should the treaties be ratified with the proposed reservations, the United States will not be obligated to adopt new legislation. The language quoted in question 5 is part of a recommended reservation intended to deal with federal-state relationships in U.S. law and does not require (when read together with the foregoing reservations) new implementing legislation.
You have also inquired as to the effect of the absence of an affirmation of the right to own private property in the Covenant on Economic, Social and Cultural Rights. Under international law, any taking of private property must be nondiscriminatory and for a public purpose, and must be accompanied by prompt, adequate and effective compensation. The absence of a private property provision in the Covenant does not contradict or change this customary rule of international law.
In our judgment Article 25 of the Covenant is limited by the foregoing rule. You will note that with respect to Article 2(3) and Article 25 of the Covenant, the Departments of State and Justice have recommended the following declaration:
“The United States declares that nothing in the Covenant derogates from the equal obligation of all States to fulfill their responsibilities under international law. The United States understands that under the Covenant everyone has the right to own property alone as well as in association with others, and that no one shall be arbitrarily deprived of his property.”
This declaration, which includes a reiteration of Article 17 of the Universal Declaration of Human Rights, would make clear that the United States will become a party to the Covenant only with the understanding that private property rights shall be respected under international law.
It should also be noted that Article 5(2) of the Covenant provides that no derogation from any fundamental rights legally recognized in any country party to the Covenant is permitted simply on the ground that the Covenant does not recognize such rights or recognizes them to a lesser extent. Therefore even if the Covenant did not recognize the right to own private property, it would have no effect upon U.S. law in that regard.
The Fifth Amendment of the Constitution provides that private property is not to be taken for public use "without just compensation.” Since under U.S. law treaties may not supersede any provision of the Constitution, Reid v. Covert, 354 U.S. 1 (1957), the absence of an affirmation of the right to own private property in the Covenant cannot have any legal effect in the United States.
Mr. Jack Goldklang, Office of Legal Counsel, Department of Justice, who testified for the Department of Justice on the human rights treaties at the Committee's hearing on November 14, 1979, concurs in this letter.
I hope that these responses to your questions will be helpful, and if we can be of further assistance on these important matters, please do not hesitate to write or call. Sincerely,
ROBERTS B. OWEN,
Senator Pell. I think Mr. Sklar may have had a comment to make. Mr. SKLAR. Yes, I do, thank you.
I wanted to add a brief word in response to the two questions you raised about Helsinki. One is to the effect of our ratification of the covenants themselves on Eastern Bloc countries. I think one very practical reason that our ratification is so great a help in those situations would be the fact that in addition to the Helsinki followup conference, the enforcement agencies which look to the monitoring of those covenants require reports from the countries on an annual basis, examine deficiencies, make observations and request changes. Those enforcement mechanisms, and the Human Rights Committee in particular, right now are without U.S. participation. Our signature would mean that we would be sitting on those bodies and participating in a process whereby those problems and those issues would be aired. Right now we are denied access to those bodies and to that opportunity.
In terms of the domestic issues, the fact of the existence of very real problems is important. I think the prison conditions situation is a very excellent example of how the covenants can help our processes.
Private groups have filed approximately 35 lawsuits against State penitentiary systems. Federal, district, and State courts have ruled in 17 of those cases and have found violations of our own constitutional system and standards in all 17 of those cases.
The fact is that the process of making those changes is very slow through the court process. Our ratification of the covenants may be one way that we help to bring ourselves up to the point not only of the covenants, but of our own constitutional standards with respect to prison conditions and other areas like that where we are in violation of human rights commitments and standards.
Mr. CAREY. Mr. Chairman, just briefly let me say that the Helsinki Accords do give the United States an opportunity to comment on human rights conditions in East Europe in a way that would not exist in the absence of the Helsinki Accords simply because we are not yet
party to the covenants. Senator Pell. Thank you very much. Gentlemen, thank you all very much for being with us.
The committee will hold its final hearing on the human rights conventions on Monday at 9:30 a.m. in this same room. I have to preside at another committee meeting, and I believe Senator Zorinsky will be presiding at that time.
Again, we appreciate very much your testimony today and look forward to receiving your additional comments,
This committee is adjourned until Monday.
(Whereupon, at 12:47 p.m., the committee adjourned, to reconvene at 9:30 a.m., Monday, November 19, 1979.]