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50. Statement, Conrad K. Harper, Legal Adviser of the Department of State, before UNHRC, regarding conditions on ratification of ICCPR (March 29, 1995)



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USUN PRESS RELEASE #49-(95) MARCH 29, 1995

Statement by Conrad K. Harper, Legal Adviser, U.S. Department of State, to the Human Rights Committee at its Fifty-third Session at the United Nations on U.S. Implementation of the International Covenant on Civil and Political Rights, March 29 1995 '

Mr. Chairman:

Let me echo the sentiments expressed by Assistant Secretary Shattuck by saying that it is a great privilege to appear before this distinguished Committee today.

I am Conrad Harper, the Legal Adviser of the Department of

State. As part of my official duties, I have responsibility

for monitoring the treaty obligations undertaken by the United States, from the negotiation phase through consideration by the United States Senate to ratification and implementation.

Although I assumed my present office after the Covenant on Civil and Political Rights had been ratified, I am quite familiar with the circumstances of ratification and I had a direct role in the preparation of our initial report. In addition, I have been involved with the subsequent consideration of other human rights treaties, including in particular the Torture Convention and the Convention on the Elimination of All Forms of Racial Discrimination, which I am glad to say we ratified last fall.

Without meaning to presume, I expect that a number of the

members of the Committee will have questions, if not concerns, about the various reservations, understandings and declarations

on which the United States conditioned its ratification of the

Covenant. It may serve to advance our discussion if I use my brief time this morning to review those conditions with you. My hope is that, by explaining why we felt it necessary to attach these particular conditions and how we view their effect, I can reassure you that they are in fact limited, focused and justified. More important, none is contrary to the object and purpose of the Covenant.


Before doing that, I want to mention that we have read with great care and interest General Comment 24, which the Committee adopted last November on the subject of reservations.

We understand the Committee's concern over the harm that could be done to the Covenant by a large number of highly restrictive reservations. We share that concern.

We see, however, a number of substantive problems in the

General Comment. Some may have been unintentional or the result of misunderstanding. Others may reflect a genuine difference of view as to the proper interpretation of the

Covenant and relevant principles of international law. We have prepared an analysis of the General Comment, and a statement of the issues we have identified, for the benefit of the Committee. I have delivered that analysis to the Chairman. We would be pleased to discuss these views with the Committee at the appropriate time.

Turning to the reservations, understandings and declarations, Mr. Chairman, I want to emphasize the following points:

The United States has in fact accepted the obligations of the Covenant with very few exceptions and limitations. Taken as a whole, the group may seem large: there are 5 reservations, 5 understandings, and 4 declarations. A careful reading will demonstrate that each of these provisions is addressed to quite limited and specific issues and that each is in fact justified.



Existing U. S. law complies with the Covenant, taking into account the reservations and understandings. In fact, the Covenant essentially sets forth the individual rights and freedoms which are in fact enjoyed by all Americans under the Constitution of the United States, the Bill of Rights, federal law and the Constitution and laws of our 50 States, our territories and dependencies.


Speaking generally, most of the reservations, understandings and declarations can be grouped around three

sets of issues: (a) how we intend to give effect to the

Covenant as a matter of domestic law, (b) the fact that certain rights (such as freedom of speech) are given greater protection

under our Constitution than under the Covenant, and (c) certain limited differences in approach to the criminal justice system.


We have taken no "general" reservations to Covenant. We have not, for example, subjected our adherence to unidentified provisions of the U.S. Constitution.


Finally, there exists an extensive body of law in the United States to protect and promote the rights articulated in the Covenant. We have discussed this body of law in considerable detail in our report. Through these provisions, the rights set forth in the Covenant are already reflected in existing U.S. law. For this reason, we did not propose special or separate implementing legislation.

Domestic Implementation

Non-Self-Executing: As a matter of domestic law, we have

declared the substantive provisions of the Covenant to be "non-self-executing." This declaration is not a reservation and does not affect our international obligations under the Covenant. Rather, it means that the Covenant does not, by itself, create private rights enforceable in U.S. courts; that can only be achieved by federal legislation.

In point of fact, existing U.S. law already contains the rights set forth in the Covenant as well as numerous mechanisms by which those rights can be protected and asserted. In other words, although Covenant rights are not themselves directly actionable in U.S. courts, their analogues in domestic law can be and are fully adequate to the purposes of the Covenant. Since existing U.S. law complies with the Covenant on the basis on which we have ratified, and since U.S. law already permits redress and remedies for violations of those rights, we have not proposed new legislation directly implementing the Covenant.

Some have criticized our approach as reflecting a refusal to change our law to conform to the Covenant. I must say, Mr. Chairman, that the decision to make the treaty "non-self­ executing" reflects a strong preference, both within the Administration and in the Senate, not to use the unicameral treaty power of the U.S. Constitution to effect direct changes in the domestic law of the United States. If the Congress, both House and Senate, desires to change existing domestic laws, it will do so by statute, in the customary legislative process. In fact, a number of non-governmental organizations have been working in the Congress for consideration of draft legislation to remove the need for a number of reservations and understandings.

Federal-State: Moreover, we have indicated that we shall

carry out our obligations under the Covenant in a manner consistent with the federal nature of our form of government. Again, this is not a reservation and does not affect our international obligations under the Covenant, but rather concerns the steps to be taken domestically by the respective federal and state authorities.



Constitutional Protections

Freedom of Speech: In some instances Covenant provisions

impinge upon fundamental rights protected by the U.S.

Constitution. In particular, Article 20 would directly

conflict with our constitutional guarantee of free speech by

requiring the prohibition of propaganda for war and of advocacy

of national, racial or religious hatred that constitutes

incitement to discrimination, hostility or violence. We

therefore took a clear and strong reservation to Article 20.

Similarly, the provisions of Article 19 permit certain

restrictions on the fundamental right of freedom of opinion and

expression which are not compatible with our Constitutional

guarantees of free speech. We could not impose such

restrictions and we have clearly stated our view that other

states should do so only where absolutely necessary. In this

instance, we insist on affording greater protections for

individual rights than the Covenant requires.

Non-Discrimination and Equal Protection: The Constitution

and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against

discrimination. Our law, like the law of most if not all

countries, permits certain lawful distinctions to be made among

individuals when those distinctions are, at minimum, rationally

related to a legitimate government objective. We have stated

our understanding that the non-discrimination provisions in the Covenant, which we accept, do not prevent such distinctions.

Criminal Justice Issues

Other Covenant provisions, while not touching on constitutional issues, vary from existing U.S. law in certain respects, requiring us to condition U.S. adherence either on a narrowly-tailored reservation or on a statement of our understanding of what the Covenant in fact requires. Most of these concern the workings of our criminal justice system.

Capital Punishment: The most significant of these, and perhaps the most controversial, is our reservation to the prohibition in Article 6 against the imposition of the death penalty for crimes committed by persons below 18 years of age. U.S. law permits the imposition of capital punishment for crimes committed by juvenile offenders aged 16 or 17. The execution of people for crimes committed while they were under the age of 16 has been ruled unconstitutional by the U.S. Supreme Court and does not occur.

We have also taken a reservation to Article 7, which makes

clear that we do not accept the "death row phenomenon" as constituting "cruel, unusual or degrading treatment or punishment", as the European Court of Human Rights recently held.



We understand that capital punishment has been abolished or

severely limited in many countries in the world. In the United

States, there is a continuing debate over this issue, including

dispute over provisions which permit courts to treat juveniles

as adults in certain limited situations. Current U.S. law

reflects the democratically-expressed will of the American

people. Our Supreme Court has upheld its constitutionality.

Capital punishment is not prohibited by the Covenant or, more

generally, by international law.

Right to Compensation: The Covenant can be read to give

everyone an absolute right in all situations to compensation

for unlawful arrest or detention or miscarriage of justice. We

believe the proper reading of this provision is that states are

obliged to provide effective and enforceable mechanisms by

which victims may seek and, where justified, obtain such

compensation; moreover, the actual entitlement to compensation

may be subject to reasonable requirements of domestic law.

That is the situation under U.S. law. Accordingly, we have

proposed an understanding to this effect.

The remainder of our reservations and understandings

concern technical issues of the criminal justice system, which

may be addressed most appropriately in the context of responses

to your questions and comments. Before turning the floor over

to my colleagues from the Department of Justice and the Department of the Interior, I want to make a few final observations.

First, the process of treaty ratification in the United States is an open one, and in the case of the Covenant it involved extensive consultation and coordination with the non-governmental community, including human rights advocates, academics and practitioners. As you know, the hearings of the Senate Foreign Relations Committee were open, and a large number of non-governmental organizations testified and submitted written comments so that their views could be taken into account by the Senate.

Second, the preparation of our report to this Committee also involved many departments and agencies of the federal government as well as extensive consultations with the non-governmental human rights community. We actively solicited the comments and submissions of the NGOs as to the contents of the report, and while they were not directly involved in the drafting and editing, we continued an active dialogue throughout the preparation of the report.


Copies of the Covenant and the Report have been provided to each state Attorney General and to state bar associations, as a way of promoting awareness of the Covenant and of the rights it protects. We know that the Report--or portions of it--are already being used in a number of the many courses on human rights taught in universities and law schools around the country, and parts will likely be incorporated in new editions of textbooks in the field.

Finally, I can assure the Committee that we shall have a continuing review of how our responsibilities under the Covenant are implemented, of the need for maintaining our reservations, understandings and declarations in light of future developments, and of how future legislation comports with the Covenant.

Thank you.

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