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The Covenant on Civil and Political Rights As the Law of the Land Volume 25 Issue 1 Article 7 1979 The Covenant on Civil and Political Rights as the Law of the Land Alice A. Noble Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Alice A. Noble, The Covenant on Civil and Political Rights as the Law of the Land, 25 Vill. L. Rev. 119 (1979). Available at: https://digitalcommons.law.villanova.edu/vlr/vol25/iss1/7 This Comment is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Noble: The Covenant on Civil and Political Rights as the Law of the Land THE COVENANT ON CIVIL AND POLITICAL RIGHTS AS THE LAW OF THE LAND. I. INTRODUCTION More than three decades ago, at the United Nations San Francisco Con- ference, President Truman announced that "we have good reason to expect the framing of an international bill of rights acceptable to all nations in- volved. That bill of rights will be as much a part of international life as our own Bill of Rights is a part of our own Constitution." 1 While the expecta- tion of the framing of an international bill of rights has been realized in the International Covenant on Civil and Political Rights 2 and the International Covenant on Economic, Social and Cultural Rights, 3 the United States has lagged far behind other nations 4 in making these Covenants "as much a part of international life as our own Bill of Rights is a part of our own Constitu- tion." 5 Although both of these Covenants were opened for signature in 1966 and entered into force in 1976,6 to date, neither Covenant includes the United States as a member party. In a speech before the United Nations in March, 1977, President Carter stated that he will urge congressional approval of these Covenants. 7 Both 1. United Nations Conference on InternationalOrganization Documents, Doc. 1209, p/19, 1 U.N.C.I.O. Docs. 683 (1945). 2. International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 21 U.N. GAOR, Supp. (No. 16) 52-58, U.N. Doc. A/6316 (entered into force March 23, 1976) [hereinafter cited as Covenant on Civil and Political Rights]. The Covenant entered into force pursuant to its own terms three months after the date of deposit of the 35th instrument of ratification or instrument of accession. See id. art. 49. 3. International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966, 21 U.N. GAOR, Supp. (No. 16) 49-52, U.N. Doc. A/6316 (entered into force Jan. 3, 1976) [hereinafter cited as Covenant on Economic, Social, and Cultural Rights]. The Covenant entered into force pursuant to its own terms three months after the date of deposit of the 35th instrument of ratification or instrument of accession. See id. art. 27. 4. Among the parties to both the Covenant on Civil and Political Rights, supra note 2, and the Covenant on Economic, Social and Cultural Rights, supra note 3, are the United Kingdom of Great Britain, Northern Ireland, Czechoslovakia, the German Democratic Republic, the Federal Republic of Germany, Mongolia, Ukrania Soviet Socialist Republic, the Union of Soviet Socialist Republics. UNITED NATIONS, MULTILATERAL TREATIES IN RESPECT OF WHICH THE SECRETARY GENERAL PERFORMS DEPOSITARY FUNCTIONS 95-106 (1977). 5. See note 1 and accompanying text supra. 6. See notes 2 & 3 supra. 7. 76 DEP'T STATE BULL. 329, 332 (1977). The President stated: The basic thrust of human affairs points toward a more universal demand for funda- mental human rights. The United States has a historical birthright to be associated with this process. ...To demonstrate [the commitment of the United States to human rights] I will seek congressional approval and sign the U.N. covenants on economic, social and cultural rights and the covenants on civil and political rights. And I will work closely with our own Congress in seeking to support the ratification not only of these two instruments but the United Nations Genocide Convention and the Treaty for the Elimination of All Forms of Racial Discrimination as well. Id. (119) Published by Villanova University Charles Widger School of Law Digital Repository, 1979 1 Villanova Law Review, Vol. 25, Iss. 1 [1979], Art. 7 VILLANOVA LAW REVIEW [VOL. 25: p. 119 Covenants have been signed by the United States and on February 23, 1978, President Carter delivered them to the Senate for advice and consent to ratification. 8 Doubtless much heated debate will be generated when, and if, they are introduced in the Senate since this has been the case in the senatorial debates during the more recent, largely unsuccessful hearings on other human rights treaties, such as the Genocide Convention. 9 Indeed, in recent years, human rights treaties have generally fared poorly in the Sen- ate lO despite the fact that Americans have often been key influences in the drafting of these conventions. It seems anomalous that a "world-recognized" leader in causes relating to human rights, a nation born out of a determina- tion to exercise freely the inalienable rights so boldly proclaimed by the Founding Fathers in the Declaration of Independence, should fail to be a party to international promises of human rights protection. Historically, the United States has not hesitated in becoming a party to treaties concerned with the rights of individuals. For example, one of the first treaties entered into by the United States, the Definitive Treaty of Peace with Great Britain," stated that "no Person shall suffer future Loss or Damage either in his Person, Liberty or Property on account of his participa- tion in the Revolutionary War." 12 This was followed by other treaties 8. 79 DEP'T STATE BULL. 4 (1979). 9. Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277. The Genocide Convention was before the Senate both in 1950 at the request of President Truman, 29 DEP'T STATE BULL. 844 (1949), and in 1970 upon the urging of the Nixon administration, 62 DEP'T STATE BULL. 350 (1970). Despite extended hearings on both occasions, no vote was ever taken. See Hearings on Executive 0, The Genocide Convention, Before a Subcomm. on the Genocide Convention Senate Comm. on Foreign Relations, 81st Cong., 2d Sess. 10-20, 22-52, 154, 202, 205-08 (1950); 91st Cong., 2d Sess. 12-14, 147-61 (1970). 10. In 1963 President Kennedy sent the Supplementary Convention on the Abolition of Slavery, The Slave Trade and Institutions and Practices Similar to Slave Trade, April 30, 1957, 266 U.N.T.S. 3, and the Convention on the Political Rights of Women, March 31, 1953, 193 U.N.T.S. 135, to the Senate with a letter urging the Senate to consent to their ratification. 49 DEP'T STATE BULL. 23 (1963). It was not until 1967 that hearings were held on these docu- ments. See Hearings on Executive J, K, and L, 88th Cong., 1st Sess. (1963); 90th Cong., 1st Sess. (1967); id. Part 2 (1967). Of these conventions only the Supplementary Slavery Convention was approved by the Senate. See 113 CONG. REG. 30758-62, 30902-09 (1967). This was the first United Nations Human Rights Convention approved by the Senate. For a general discus- sion of congressional action with respect to such treaties, see L. SOHN & T. BUERGENTHAL, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 968-69 (1972). One Senator made the following comments concerning the failure of the Senate to act on the Convention on the Political Rights of Women: The Human Rights Convention on the Political Rights was adopted by the General As- sembly of the United Nations in December of 1952. It was opened for signature on March of 1953, 14 years ago. As in the case of every Human Rights Convention, the Senate has failed to ratify the Convention on Political Rights of Women. President Kennedy sent this convention to the Senate 4 full years ago. Result: no action by this body. 113 CONG. REG. 6780 (1967) (Remarks of Sen. Proxmire). 11. Definitive Treaty of Peace, Sept. 3, 1783, United States-Great Britain, 8 Stat. 80-83, T.S. No. 104. 12. Id. art. VI. https://digitalcommons.law.villanova.edu/vlr/vol25/iss1/7 2 Noble: The Covenant on Civil and Political Rights as the Law of the Land 1979-1980] COMMENT which provided for such freedoms as the right to dispose of property upon death, 13 the right to counsel under the sixth amendment,' 4 and equal pro- tection rights. 15 In an article on international protection of human rights, Professor Bitker points to these early treaties as demonstrating that "concern for human rights by treaty is traditionally American." 16 Accordingly, the United States' endorsement of the recent treaties dealing with human rights would be consistent with this tradition. However, despite this tradition and the urgings of Presidents Truman, 17 Kennedy,' Nixon,' 9 and Carter,2 0 the Senate has shown strong opposition to United States involvement in such multilateral agreements by refusing to consent to United Nations docu- ments, 21 and by attempting a constitutional amendment of the treaty power through the proposed Bricker Amendment. 22 The purpose of this comment is to consider the constitutional arguments which have been raised by critics of American involvement in international human rights treaties, and to weigh the validity of the constitutional caveat to United States ratification.
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