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matter to the uncertainties of Charter interpretation, but also because it depends on the subtle point that a right may arise from a principle, as opposed to an inflexible rule.
Paragraph 3 of Article 21 of the American Convention imposes an obligation to enact laws prohibiting “usury and any other form of exploitation of man by
While usury laws are in force in many states, there is a wide disparity among them, so that it is by no means certain that all of them would satisfy the treaty provision. Second, even if “usury” is considered to have a reasonably definite meaning, “any other form of exploitation of man by man" is a slogan, not an expression which can give tangible content to a legal obligation. Further, paragraph 3 does not merely authorize restrictions on the freedom of contract (as a form of the right to property) but compels states to enact them. It is unwise to commit the United States to a rigid policy of this type, particularly since an authorizing clause would be enough to legitimize existing usury laws. Finally, usury laws are not even justifiable on their merits. For despite their superficial appeal, they have deleterious effects, not only for the economy as a whole, but also for the disadvantaged class which they are supposed to protect.35 For these reasons, I suggest the following reservation:
“The United States does not adhere to paragraph 3 of Article 21 of this Convention."
Should the Committee deem it necessary, I shall be glad to clarify the preceding statement or elaborate my views further.
(Excerpted from Oscar M. Garibaldi, “The General Clauses of the Covenants,". forthcoming as part of a study sponsored by the American Society of International Law on the ratification of the Covenants by the United States.)
I. OBLIGATIONS ARISING FROM THE INTERNATIONAL COVENANT ON CIVIL AND
Article 2 of the International Covenant on Civil and Political Rights sets forth, in general terms, the substantive obligations undertaken by the State Parties. These obligations are of three kinds: a basic obligation “to respect and to ensure” the rights recognized in the Covenant (paragraph 1); an additional obligation to take general measures of implementation (paragraph 2); and an additional obligation to provide for measures of implementation in individual cases (paragraph 3). Some of the provisions of Part III also lay down substantive obligations; for instance, under Article 20, paragraph 1, any propaganda for war must be prohibited by law. In addition, according to paragraph 3 of Article 1, the States Parties "shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the United Nations Charter.” The Covenant also imposes procedural obligations, such as the duty to submit reports to the Human Rights Committee. Here we shall consider only the general obligations of Article 2. A. The basic obligation
According to paragraph 1 of Article 2, a State Party must respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This clause specifies the basic obligation, the subjects with regard to whom that obligation is to be discharged and the manner of discharging
The basic obligation undertaken by a State Party is “to respect and ensure” the rights set forth in the Covenant. This is nothing but a way of referring, collectively, to the obligations which are the counterparts of the rights in question. To respect a right is, literally, to comply with the corresponding obligation, whereas to ensure the same right is, apparently, to induce others to comply with such obligation, perhaps by means such as (i) enacting the obligation into domestic law, (ii) making
35 See Jeremy Bentham, Letters in Defense of Csury, in The Works of Jeremy Bentham (J. Bowring, ed.), 1962, vol. 3, Jarret C. Oeltjen, “Usury: Utilitarian or Useless?”, Florida State University Law Review, vol. 3., p. 169 (1975).
it generally applicable, (iii) enforcing it in individual cases, and (iv) providing for a minimum of police measures to prevent violations. For instance, to respect the right defined in Article 7 (first sentence) is, plainly, to refrain from subjecting someone to torture or to cruel, inhuman or degrading treatment of punishment. On the other hand, to ensure the same right is to induce others to refrain from such actions, by the means just described. Most of the rights defined in Part III of this Covenant have corresponding negative obligations. Hence, the State's obligation to respect those rights is fulfilled by inaction. On the contrary, the State's obligation to ensure the rights defined in the Covenant is always positive. In both cases, the subject of the obligations imposed by the Covenant is the contracting State.
The subject of the rights, i.e., the individuals with respect to whom the State must discharge the basic obligation, are all the individuals who are (i) within the territory of the State and (ii) subject to its jurisdiction. In the system of the Covenant only individual human beings may be subjects of rights (other than the right of self-determination established by Article 1); state action directed against a legal entity would violate the Covenant only to the extent that it violates the rights of the entity's individual members. This provision applies without regard to nationality; it should be remembered that aliens are, in general, subject to the jurisdiction of the State in whose territory they are physically present. For the purposes of this clause, “territory” probably refers to areas within the State's effective control, whether or not such areas are part of the metropolitan territory or are within official and recognized boundaries. Thus, if the U.S. ratifies this treaty, it would apply, barring a reservation, not only to the metropolitan territory but to all areas within the control of the United States, including its overseas possessions and trust territory. B. The obligation to take general measures of implementation
Paragraph 2 of Article 2 provides that “[w]here not already provided for by existing legislative or other measures, each State Party ... undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the ... Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the ... Covenant." This text imposes a conditional obligation to take certain measures to implement the Covenant within the domestic sphere.
The obligations imposed by paragraph 2 are additional to that imposed by paragraph 1. In the first place, paragraph 2 does not state a condition precedent to the application of paragraph î. Under general international law, the adaptation of municipal law to the requirements of a treaty is not a condition precedent to a State's becoming bound by that treaty, unless the treaty so provides. Paragraph 2 was not intended to modify this general rule; in the absence of a valid reservation, a State which ratifies the Covenant becomes ipso facto bound by paragraph 1 of Article 2 regardless of the state of its domestic law. Furthermore, paragraph 2 does not modify the obligation to respect the defined rights (imposed by paragraph 1), nor does it convey the principle of "progressive implementation' found in Article 2 of the other Covenant. This is quite in accord with the nature of the vast majority of the specific obligations imposed by the treaty: a State is bound to refrain from applying torture even if it has not yet enacted legislation making such action unlawful.
A second group of problems concern the obligation itself. Under general international law, a State is not bound to incorporate a treaty into its domestic legal order, but it may undertake to do so in the same treatyQuite clearly, paragraph 2 neither mandates nor prohibits the incorporation of the Covenant into municipal law. This matter has been left entirely to each contracting State. The obligation imposed by paragraph 2 is, rather, to adopt such measures as may be necessary to give effect to the rights set forth in the Covenant. Notice, first, that this is a 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.5 C. The obligation to provide for measures of implementation to be taken in individual
1 This tentative conclusion is based on an analogy from the law of State responsibility for injuries caused to an alien as a result of internal disturbances. See, e.g., International Law Commission, Yearbook, 1957, ii, pp. 121-123. It is difficult to see how the required measures could go beyond those listed in the text without entering into conflict with the object and purpose of the treaty.
2 It follows from this that persons subject to the jurisdiction of a State but not physically present in its territory do not have the right not to be tried in absentia (Article 14, paragraph 3(d), International Covenant on Civil and Political Rights). It has been suggested that this conclusion runs counter to the spirit of the treaty and calls into question a textual interpretation of Article 2, paragraph 1,
3 In other words, there is no norm of customary international law which obligates a State to receive a treaty into its domestic law and, hence, make it internally applicable. Many States—the United States among them-have constitutional (i.e., domestic) rules which provide for the incorporation of treaties into municipal law, subject to varying prerequisites and qualifications. Other states, (e.g., the United Kingdom) incorporate treaties, on a case-by-case basis, through ordinary legislation. For a concise discussion, see Ian Brownlie, Principles of Public International Law, 2d. ed. (Oxford: Clarendon Press, 1973), pp. 49–53. This issue was expressly raised during the preparatory work. See U.N. Doc. A/2929, p. 18, par. 12.
4 The travaux préparatoires show that this was a deliberate choice. See ibid. The Human Rights Committee has acknowledged that the question of incorporation is a matter of domestic law.
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, 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), 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.3 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
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; 8R.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. Suora
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).
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.