33. U.S. remarks before the Committee on Human Rights re U.S. implementation of the ICCPR (July 17-18, 2006)

Remarks of Robert Harris at U.S. presentation of its Second and Third Periodic Reports on its implementation of the International Covenant on Civil and Political Rights, July 18, 2006

In the past two sessions, the United States delegation and members of the Human Rights Committee have had a lively exchange of views on several matters involving the interpretation of the Covenant. . . . . and note that . . . there are principled differences of view about the scope of several articles of the Covenant. . . . I would start by stating not only that these opinions are deeply and honestly held by all participants, but also that these differences may also reflect a different approach to the way treaty law is made and interpreted and about the way in which countries assume treaty obligations. I thought it might make sense while we have a few minutes before we end today’s session to explain . . . the way we in the United States government look at international treaty law.

The United States continues to apply a traditional approach to entering into and interpreting treaties. Under this approach, it is for each government to decide as an exercise of its sovereignty to assume treaty obligations, which, once entered into, it has a solemn and international legal obligation to fulfill. This means that treaty obligations by their nature reflect a clear and express consent of a state to assume such obligations. At the time the United States becomes party to a treaty, it conducts a very careful review of every provision in the treaty to determine whether the United States throughout its territory can implement all of the obligations it would assume under that instrument. If there are obligations that cannot be fulfilled, the United States may decide to implement necessary laws or regulations. Where it decides that it cannot or is not prepared to assume a particular obligation and where it can lawfully do so under international treaty law, it may choose instead of adopting a new law, to file an appropriate formal reservation to the treaty. The United States adopts a rigorous and transparent process to clearly describe what obligations it will assume both to the United States Senate -- which must approve treaties before the United States can join them under U.S. law -- and to our potential treaty partners. The Senate of the United States then, if it so chooses, gives its “advice and consent” both to the treaty and to any reservations, understandings and declarations that will describe the obligations to be assumed by the United States under that instrument. Thus, at the time the United States becomes a party to a treaty, it agrees to become bound subject to a very clear notion of what treaty obligations it has assumed. Thus, based on the operation of our Constitutional processes and through the operation of the rule of law, the United States becomes bound to clearly defined treaty obligations, and files formal reservations, understandings and declarations. It is important to note that this is how we approach all treaties and human rights treaties are simply an example of that general practice.

The explanation of the process of the US becoming party to a treaty, is closely related to the way the United States thinks about how its treaty obligations are to be interpreted and how those obligations might be changed. As a general matter, parties to a treaty under international treaty law could through provisions in the treaty agree to allow another entity to interpret or otherwise resolve questions relating to their obligations. In the case of the Covenant, the United States has not given authority for another entity to fashion or otherwise determine its treaty obligations. The obligations that are binding on the United States are those set forth in the Covenant, interpreted pursuant to the canons of treaty interpretation set forth in international law. With great respect for the Human Rights Committee, we note that article 40, which Professor Kalin mentioned, does not give the Committee the authority to alter treaty obligations or to issue authoritative interpretation of the treaty. . . . With respect to the jurisprudence of the Committee, over the years there have been utterances in general comments and in country recommendations with which the United States disagrees, and these are honest differences of opinion. . . . Many of the Committee’s more ambitious opinions may reflect an attempt to fill what it may consider to be gaps in the reach and coverage of the instrument. Given the view of the United States that it has assumed treaty obligations based on its consent and given the care it takes to ascertain those obligations at the time it decides to become party to a treaty, the United States takes the view that if there are gaps in a treaty, the proper approach to take under international treaty law is to amend the treaty to fill those gaps. Based on the doctrine of consent, parties as an exercise of their sovereignty can decide for themselves whether they will be bound by what are, in fact, new treaty obligations.

As we continue our dialog with the Committee on matters involving the interpretation of specific provisions of the Covenant, we hope that this broader overview of the way we look at general treaty law might give more context to the way we in the United States conducts such analysis. . . .