Treaties, human rights, and conditional consent.

• Author: Bradley, Curtis A.

INTRODUCTION

Article II of the Constitution grants the President the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."(1) When the President obtains the Senate's advice and consent and ratifies a treaty, the treaty binds the United States internationally. If the treaty is "self-executing,"(2) it also becomes part of domestic federal law, superseding both prior inconsistent federal law (treaties and statutes) and prior inconsistent state law.(3)

The constitutional treatymaking process was designed with a particular type of treaty in mind. In the late eighteenth century, treaties were primarily bilateral agreements that focused on relations between nations, regarding such issues as trade and peace. Nations entered into reciprocal relationships with other nations to achieve mutual gain. By contrast, many modern treaties do not regulate relations between nations and do not confer specific reciprocal benefits on the parties. Instead, they are multilateral instruments, open for ratification by all nations and designed to regulate the intra-national relations between nations and their citizens. This distinction is most pronounced with respect to human rights treaties.

Modern human rights treaties present several challenges for the U.S. constitutional system. The first challenge concerns substance. Human rights treaty provisions are sometimes in tension with either constitutionally guaranteed rights (like the First Amendment) or well settled and democratically popular practices (such as capital punishment for heinous crimes). The second challenge concerns scope. Human rights treaties touch on almost every aspect of domestic civil, political, and cultural life. In addition, the language of these treaties is often vague and open-ended. If such treaties had the status of self-executing federal law, they would generate significant litigation and uncertainty regarding the application and validity of numerous domestic laws. The third challenge concerns structure. Constitutional principles relating to separation of powers suggest that domestic federal law with respect to human rights should be made through a lawmaking process that involves the House of Representatives. Similarly, constitutional principles relating to federalism suggest that some matters should be regulated by state, rather than federal, officials.

For many years, these challenges led U.S. treatymakers to decline to ratify any of the major post-World War II human rights treaties. Beginning in the 1970s, the treatymakers crafted a way to commit the United States to human rights treaties in the international arena while accommodating domestic concerns. They achieved these dual aims by ratifying the treaties with a set of conditions. These conditions take the form of reservations, understandings, and declarations--collectively, "RUDs"--to U.S. ratification. The RUDs address each of the challenges outlined above. With regard to the problem of substance, U.S. treatymakers decline to commit the United States to certain substantive provisions in the treaties. With regard to the problems of scope and structure, the treatymakers declare that the treaties are not self-executing and thus not enforceable in U.S. courts until implemented by congressional legislation. Treatymakers also express an understanding that some provisions of the treaties may be implemented by state and local governments rather than by the federal government.

Many international law commentators have argued that the RUDs are legally invalid, bad policy, or both.(4) With respect to legal validity, commentators argue, among other things: that the reservations violate international law restrictions on treaty conditions; that the non-self-execution declarations are inconsistent with the Supremacy Clause of the Constitution; and that the federalism understandings are inconsistent with the national government's responsibility, under both domestic: and international law, for treaty violations. As for the policy objections to RUDs, commentators have argued that they show disrespect for international law and, in the words of Professor Louis Henkin, "threaten[] to undermine a half-century of effort to establish international human rights standards as international law."(5)

This Article challenges the conventional academic wisdom concerning both the legality and desirability of RUDs attached to human rights treaties. The RUDs, we argue, reflect a sensible accommodation of competing domestic and international considerations. Among other things, they help bridge the political divide between isolationists who want to preserve the United States's sovereign prerogatives, and internationalists who want the United States to increase its involvement in international institutions--a divide that has had a debilitating effect on U.S. participation in international human rights regimes since the late 1940s. Perhaps more importantly, the RUDs help reconcile fundamental changes in international law with the requirements of the U.S. constitutional system. The RUDs achieve these ends, we contend, in ways that are valid under both international and domestic law.

To date, courts have enforced the RUDs, but no court has considered their validity in any detail.(6) The practical significance of the issue was illustrated recently in a Nevada death penalty case, Domingues v. State.(7) In that case, the State of Nevada sentenced Michael Domingues to death for two murders committed when he was sixteen years of age.(8) The U.S. Supreme Court has held that the Eighth Amendment does not prohibit the execution of sixteen-year-old offenders.(9) Domingues nevertheless challenged his death sentence in the Nevada courts on the ground that it was inconsistent with the International Covenant on Civil and Political Rights, a multilateral treaty ratified by the United States in 1992.(10) This treaty contains a provision prohibiting the imposition of a death sentence for the commission of a crime by a person under the age of eighteen.(11) When it ratified the treaty, however, the United States attached a reservation stating that it did not consent to this provision, as well as a declaration stating that the entire treaty was non-self-executing. Domingues contended that these conditions were invalid and should thus be disregarded by U.S. courts. Although a majority of the Nevada Supreme Court rejected this argument,(12) two dissenting justices took Domingues's treaty argument seriously.(13) Arguments similar to those made by Domingues were made recently in connection with executions scheduled in a number of other states.(14)

Our analysis proceeds as follows. Part I describes the historical background of the RUDs and their principal features. Part II shows that the international law objections to the RUDs are questionable on their own terms and that, in any event, the conclusion usually drawn from these objections--that the United States is bound by the human rights treaties as if it had never attached the RUDs--is inconsistent with international law principles relating to national consent. Part III demonstrates that, regardless of the legality of the RUDs under international law, they are valid under domestic constitutional law and thus must be enforced by U.S. courts. Finally, Part IV discusses a variety of functional benefits--including benefits for international human rights law--associated with the treatymakers' conditional consent power.

1. HISTORY, PURPOSES, AND CONTENT OF RUDs

   This Part sets out the background needed to evaluate the validity of the RUDs. Part I.A provides a brief history of conditional consent in the United States, from the Founding until World War II. Part I.B then explains how the development of international human rights law after World War II led U.S. treatymakers to embrace the particular RUDs that are the focus of this Article. Part I.C describes these RUDs in detail.

   1. A Brief History of Conditional Consent

      The U.S. treatymaking process operates essentially as follows.(15) Representatives of the President negotiate the terms of the treaty with foreign nations, and the President or his representative signs the completed draft.(16) The President then transmits the treaty to the Senate for its advice and consent. If the treaty receives the required two-thirds vote, the Senate sends a resolution to the President approving the treaty.(17) The President has the discretion at this point to ratify or not ratify the treaty.(18) Ratification is the act by which a nation formally declares its intent to be bound by a treaty. When the President signs the instrument of ratification and the Secretary of State affixes the Seal of the United States, the U.S. ratification process is complete. Even at this point, however, the United States is not bound by the terms of the treaty. The treaty only becomes binding on the United States when the instrument of ratification is either exchanged, as is usually the process with respect to bilateral treaties, or deposited at a specified place, as is usually the process with respect to multilateral treaties.(19)

      On numerous occasions throughout U.S. history, the President and Senate have proposed conditions in connection with their ratification of treaties. Indeed, approximately fifteen percent of all Article II treaties since the Founding have been ratified subject to conditions that require subsequent assent from other treaty parties.(20) Usually the Senate has proposed these conditions, but sometimes the President has as well.(21) The treatymakers have used a variety of labels for these conditions, including "amendment," "reservation," "understanding," "declaration," and "proviso."(22) For purposes of this Article, the three most important forms of conditional consent, whatever their labels, have been the power not to consent to particular treaty terms, the power to consent to a treaty on the condition...