Will the U.S. Senate Finally Give Its “Advice and Consent” to U.S. Ratification of the Law of the Sea Treaty?

The United Nations Convention [Treaty] on the Law of the Sea sets out international rules for maritime navigation, territorial waters and countries’ use of offshore areas as exclusive economic zones. It was the result of an international conference that concluded on December 10, 1982 at Montego Bay, Jamaica when the U.S. and 120 other nations adopted the text of the treaty, and it went into force on November 16, 1994. Now 162 of the 193 U.N. member states are parties to the treaty.

The U.S. signed the treaty on July 29, 1994, but it has not been ratified by the U.S. Such ratification, however, is once again on the table as we will see after reviewing what has happened in the U.S. with respect to the treaty in the nearly 30 years since it was adopted. This is another example of the complicated and difficult process of obtaining U.S. Senate advice and consent to ratification of a treaty by a two-thirds vote (67 Senators) under Article II, Section 2(2) of the U.S. Constitution that was examined in a post with respect to the Convention Against Torture.

Background

Although the treaty was concluded during his Administration, President Regan did not sign the treaty. Nor was it signed during the George H.W. Bush Administration.

President Bill Clinton

But on July 29, 1994, President Bill Clinton signed the treaty along with a July 28, 1994, Agreement resolving U.S. and others’ objections to a part of the treaty. On October 7, 1994, Clinton submitted the treaty and the Agreement to the U.S. Senate for its “advice and consent” to ratification by the U.S. In his transmittal message, President Clinton said that since 1982 successive U.S. administrations had not signed the treaty because of flaws in its regime for managing the development of mineral resources of the seabed beyond national jurisdiction, but these provisions had been changed by the just mentioned Agreement.[i] Therefore, according to the President, it was now appropriate for the U.S. to join the treaty. President Clinton also stated:

  • “The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.”

Furthermore, President Clinton continued, this treaty had the following benefits for the U.S.:

  • “The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.”
  • “The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.”
  • The treaty is “a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution . . . . [It thereby]  promotes continuing improvement in the health of the world’s oceans.”
  • The “Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.”
  • “The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean–solutions that respect the essential balance between our interests as both a coastal and a maritime nation.”
  • “Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with . . . [its] provisions.”

Nine years later in October 2003, the Senate Committee on Foreign Relations held the first hearings on the treaty, and on February 25, 2004, the Committee unanimously ordered it to be reported favorably without amendments to the full Senate. The treaty went to the Senate floor on March 11, 2004 with a report by Committee Chair, Republican Senator Richard Lugar of Indiana. However, no vote on the resolution of advice and consent had been taken when the congressional session ended in December 2004, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

The George W. Bush Administration had asked for ratification in 2004. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on its list of treaty priorities. Widespread support for ratification was expressed to the Committee:

  • Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department testified in support of the Convention at various Congressional hearings.
  • Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.
  • In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, supported U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supported ratification.
  • Moreover, a long list of environmental and ocean groups had endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.
  • During the Committee’s consideration of the treaty, it received just one inquiry voicing opposition to the measure and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.
Senator                Richard Lugar
Despite this strong support for ratification of the treaty, full Senate consideration of the treaty in 2004 had been held up by vague and unfounded concerns about its effects. Chairman Lugar commented that these concerns had been expressed primarily by those who oppose virtually any multi-lateral agreement. “Various conservative lobbyists have indicated strong objections—they believe our sovereignty will be impugned.” Senator Lugar lamented this inaction. He said, “If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.” Moreover, the Bush Administration was not willing to expend political capital to push for ratification, and Senate Majority Leader Frist was not willing to put it on the Senate calendar in light of a threatened filibuster.
Senator Joe Biden

Nearly three years later, in September and October 2007, that Committee held another set of hearings on the treaty, and on October 31, 2007, ordered it to be reported favorably without amendments to the full Senate by a vote of 17 to 4. The treaty went to the Senate floor on December 19, 2007 with a report by Committee Chair, Democratic Senator Joe Biden of Delaware. However, no vote on the resolution of advice and consent had been taken when the congressional session concluded on January 2, 2009, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

Senator Lugar again reflected on this failure to obtain the Senate’s advice and consent to ratifying this treaty. He said there needed to be a “reinvigorated Senate commitment to the treaty process.” Senate leaders of both parties, he said, had allowed narrow objections to prevent Senate consideration of this and other treaties and had been unwilling to invoke cloture to terminate debate on treaties. For this blogger, this is another example of the abysmal rules of the U.S. Senate.

Renewal of Interest in U.S. Ratification of the Treaty

As previously mentioned, possible U.S. ratification of the treaty is back on the table.

Secretary Leon Panetta

On May 9, 2012, Secretary of Defense Leon Panetta gave a lengthy speech calling for such ratification. He said this treaty is “the bedrock legal instrument underpinning public order across the maritime domain” and yet the U.S. is the only permanent member of the U.N. Security Council and the only industrialized country in the world that is not a party. This puts the U.S. at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities.

Panetta noted, as detailed above, that the Senate Foreign Relations Committee has held hearings and approved the treaty by large bipartisan majorities and that the treaty is supported among major U.S. industries in order to be able to do their business and to accomplish their goals.

The same is true for national security, Panetta said, as demonstrated in comments by the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Commandant of the Marine Corps, and the Coast Guard Commandant. Panetta then listed some of the reasons why this treaty is essential to a strong national security.

First, as “the world’s pre-eminent maritime power,” the U.S. with one of the largest coastlines and extended continental shelf in the world “has more to gain from accession to the Convention than any other country because of the interest we have from our coastlines, from our oceans, and from our continental shelves.  By . . .  sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.  If we’re not there, then . . . [others will] do it, and we won’t have a voice.” Under these circumstances, the U.S. will not be able “to ensure that our rights are not whittled away by the excessive claims and erroneous interpretations of others.” To be a party, on the other hand, “would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.”

Second, by joining the Convention, the U.S. “would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables.  As it currently stands, we are forced to assert our rights to freedom of navigation, asserting hopefully, through customary international law, which can change to our own detriment.” But by joining the Convention, “we would help lock in rules that are favorable to freedom of navigation and our own global mobility.”

Third, “accession [to the treaty] would help lock-in a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone.”

Fourth, “accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest.  We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes.  The Convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not party to the Convention.”  Accession would also “preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.”

Finally, the new U.S. “defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia.”  Many countries “sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea.” The U.S. has had a consistent naval presence and engagement in these critical regions.   Becoming a party to the Convention would strengthen the U.S. position in these key areas. By not acceding to the Convention, the U.S, potentially is undercutting “our credibility in a number of Asia-focused multilateral venues – just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes.”  Being a party to the treaty is also important for the U.S. efforts to preserve freedom of transit in the Strait of Hormuz in the face of Iranian threats to impose a blockade.

Democratic Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, has said that he is considering holding new hearings on the treaty.

Conclusion

In a presidential election year bipartisan cooperation is even more difficult than normal, especially after Senator Lugar’s loss in the Indiana primary election this past Tuesday. Therefore, it seems unlikely that the Senate this year will give its advice and consent by a two-third’s vote to ratification of this treaty. We will wait and hope that this assessment is proven wrong.


[i]  Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994

The Torture Victims Protection Act

In March 1992, the U.S. adopted the Torture Victims Protection Act (TVPA) that provides a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) The Act also provides a similar civil action for money damages by an “individual’s legal representative” for “extrajudicial killing” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the extrajudicial killing. (Emphasis added.)[1]

The TVPA provides definitions for this purpose of “torture” and “extrajudicial killing.”[2]

The House of Representatives committee report on the TVPA states that it provides a federal cause of action and that torture and summary execution are now banned by customary international law. With respect to torture, the report cited the Filartiga case that allowed a suit against a torturer under the Alien Tort Statute (ATS) and that had met with general approval.[3] But still torture occurs, the report continued. “Judicial protection against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent.“ The TVPA establishes an “unambiguous and modern basis for cause of action that has been maintained under the . . . [ATS]. [The ATS] has other important uses and should not be replaced.” For torture there should be “a clear and specific remedy, not limited to aliens.” Torture and summary executions are not only abuses covered by ATS. “That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.” [4]

Another reason for the TVPA, the House committee report notes, was the U.S. obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to provide measures to hold torturers legally accountable.[5]

The TVPA was signed by President George H. W. Bush on March 12, 1992, and in a signing statement, he said that the U.S. has a strong commitment to advancing respect for and protection of human rights throughout the world. He, however, was concerned that U.S. courts might become embroiled in difficult and sensitive disputes in other countries and possibly ill-founded or politically-motivated suits. Such potential abuse of this statute undoubtedly would give rise to serious friction in international relations and would also be a waste of our limited and already overburdened judicial resources.” The President hoped that U.S. courts will be able to avoid these dangers by sound construction of the statute and the wise application of relevant legal procedures and principles. The President said that he understands that the TVPA “does not permit suits for alleged human rights violations in the context of United States military operations or law enforcement actions.” The Act, the President added, talks of “actual or apparent authority, or color of law, of any foreign nation.”  (Emphasis added.)[6]

The TVPA provides two potential affirmative defenses.

One is the plaintiff’s failure to exhaust “adequate and available remedies” where the conduct occurred. For this defense the courts have concluded that the defendant bears the burden of proof and persuasion with the plaintiff potentially rebutting any such proof by showing that the local remedies were ineffective, unavailable, unduly prolonged, inadequate or obviously futile.[7]

The other affirmative defense expressed in the TVPA is a 10-year statute of limitations. This limitation, however, can be suspended by the courts under an equitable doctrine.[8]

Under that statute, U.S. federal courts have held that actions ranging from prolonged arbitrary arrest to extrajudicial killings constitute “torture.”  For example, gratuitous, punitive or coercive electric shocking of a pretrial detainee is “torture” as is electric shocking of soles of feet, hanging a person upside down during interrogation and anally assaulting a person with a coke bottle.[9]

Cases under the TVPA in the lower federal courts have held that (a) the requirement for a defendant’s acting under “actual or apparent authority, or color of law” should be interpreted using the existing body of law under federal civil rights litigation (42 U.S.C. § 1983); (b) the TVPA could be applied to people acting under the authority of de facto states; (c) the TVPA could be applied retroactively; and (d) U.S. officials are not subject to TVPA claims because of the statute’s requirement that a defendant act under color of foreign law.[10] There is a split of authority on whether the TVPA replaces the ATS for claims for torture or extrajudicial killing.[11]

Another issue confronted by the lower courts and now before the U.S. Supreme Court is whether a corporation can be sued under the TVPA as an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed torture or extrajudicial killing.[12]

Although as a human rights advocate I hope that the Court will decide that a corporation is an “individual” within the meaning of the statute, I think that is an unlikely result. The word “individual” in ordinary and legal language usually means a human being whereas the word “person” usually means a human being or a legal entity like a corporation. Moreover, the statute uses the word “individual” twice in the same section to refer to the victim of the torture (obviously a human being) and to the defendant who committed the torture; it would be unreasonable, in my opinion, to have different meanings of the same word in such close proximity unless the statute expressly so provided. Moreover, the House Committee Report on the TVPA said, “Only ‘individuals,’ not foreign states, can be sued under the bill.”[13]


[1] Pub. L. 102-256, §2, 106 Stat. 73, §2 (a) (102nd Cong., 2d Sess., Mar. 12, 1992) (28 U.S.C. § 1350 footnote).

[2] 28 U.S.C. § 1350 footnote, §3.

[3]  Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011).

[4] U.S. House Rep. No. 102-367 (4 U.S. Code Cong. & Admin. News 84 (1992)).

[5] Id.; Post: The Multilateral Treaty Against Torture (Nov. 29, 2011).

[6] Statement by President George H. W. Bush on Signing H.R. 2092 (March 12, 1992), 4 U.S. Code Cong. & Admin. News 91 (1992).

[7] 28 U.S.C. § 1350 footnote, §2 (b). In Lizarbe v. Rondon, 642 F. Supp.2d 473 (D. Md. 2009), a civil remedy in Peru was inadequate because it was contingent on conclusion of criminal charges that can take years and because civil damages are ineffective. In Doe v. Saravia, 348 F. Supp.2d 1112 (E.D. Cal. 2004), remedies in El Salvador were inadequate, thus negating the exhaustion requirement. (See also Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 11, 2011).) In Mamani v. Sanchez, 636 F. Supp. 2d 1326 (S.D. Fla. 2009), on the other hand, TVPA claims were dismissed without prejudice for the plaintiff’s failure to exhaust adequate and available remedies in Bolivia.

[8] 28 U.S.C. § 1350 footnote, §2(c). See also Doe v. Saravia, supra (TVPA statute of limitations was suspendedbecause plaintiff could not have obtained justice in El Salvador) Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 11, 2011); accord Arce v. Garcia, 434 F.3d 1254, 1263-65 (11th Cir. 2005); Post: Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture (Nov. 11, 2011); Chavez v. Carranza, 559 F.3d 486, 491-94(6th Cir. 2009); Post: Former Salvadoran Vice-minister of Defense Held Liable by U.S. Courts for $6 Milliion for Torture and Extrajudicial Killing (Nov. 13, 2011)

[9] Chowdhury v. WorldTel Bangladesh Holding Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008); Nikbin v. Islamic Republic of Iran, 517 F. Supp.2d 416 (D.D.C. 2007).

[10]  David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 984-90 (4th ed. 2009)[“Weissbrodt”]; Krohnke, Supplement to Chapter 14 (ATS Litigation) of Weissbrodt, Ni Aolain, Fitzpatrick & Newman, International Human Rights: Law, Policy and Process (4th ed.) (Oct. 26, 2010); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), cert. denied, 130 S. Ct. 3409 (2010).

[11] Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005), cert. denied, 127 S. Ct. 596 (2006)(no replacement of ATS); Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), cert. denied, 546 U.S. 1175 (2006)(ATS is replaced).

[12] Weissbrodt  at 986-87; Post: U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[13] See n.4 supra.

U.S. Ratification of the Multilateral Treaty Against Torture

The U.S. procedures for ratification of multilateral treaties are complicated and not widely understood. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.

For the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), these procedures took 17 to 19 years and five presidencies before the U.S. had ratified the treaty and it went into force for the U.S.

1. U.S. Participation in the Preparation of the Torture Convention.

As we have seen, the U.N.’s preparation of this treaty started in 1975 with its actual drafting by the U.N. Commission on Human Rights from 1978 through early 1984. During this nine-year period the U.S. was one of 53 members of that Commission and in that role participated in the treaty’s preparation.[1]

U.S. diplomats also were active participants in the drafting process with the objective of obtaining an effective treaty on the subject that the U.S. would be able to ratify. As President Reagan said, the U.S. “participated actively and effectively in the negotiation of the Convention.”[2]

Similarly U.S. Secretary of State George Schultz noted that the U.S. “contributed significantly to the development of the final Convention, especially in proposing that [it] focus on torture, rather than on other relatively less abhorrent practices.” In particular, the Secretary reported that the U.S. was a strong supporter for Article 7’s providing that if a State finds someone who committed torture in another country and does not extradite him to that country, the first State “shall . . . submit the case to its competent authorities for t he purpose of prosecution.” This use of the principle of universal jurisdiction was “to prevent a loophole that would create potential safe-havens for torturers.”[3]

An outside observer said, the U.S. “was one of the moving forces in the adoption of the Convention . . . [and] was involved at all stages of the drafting process,” and “the final version . . . is largely consistent with positions taken by [the U.S.] . . . during that process.”[4]

2. U.S. Signing the Torture Convention.

Although the Convention was available for signature by states immediately upon its unanimous approval by the U.N. General Assembly in December 1984, the U.S. did not sign the treaty until over three years later.

During those three-plus years the U.S. Departments of State and Justice were engaged in negotiating a package of reservations and other conditions for U.S. ratification of the treaty. State advocated rapid signature; Justice, caution. Those negotiations apparently were not concluded until April 1988. The Department of State during this period also had discussions with the Senate Foreign Relations Committee staff on the subject of conditions for ratification.[5]

On April 18, 1988, John C. Whitehead, Deputy Secretary of State in the Reagan Administration, signed the Convention at the U.N. Whitehead said at signing that the treaty would be sent to the Senate for advice and consent to ratification with proposed reservations, understanding and declarations to resolve ambiguities and safeguard U.S. interests.[6]

3. U.S. President’s Submission of the Torture Convention to the U.S. Senate.

The next month, May 1988, the Reagan Administration submitted the treaty to the U.S. Senate for its advice and consent to ratification. President Reagan’s accompanying message said that U.S. ratification “will clearly express [U.S.] opposition to torture.”[7]

The accompanying letter from Secretary of State George Schultz said that the Administration would submit proposed legislation to implement the treaty. Such legislation, he said, was “needed only to establish [the Convention’s] Article 5(1)(b) jurisdiction over offenses committed by U.S. nationals outside the [U.S.] and to establish Article 5(2) jurisdiction over foreign offenders committing torture abroad who are later found in territory under U.S. jurisdiction.”[8]

With the treaty were the Administration’s proposed reservations, understandings and declarations for such Senate advice and consent.[9]

4. U.S. Senate Foreign Relations Committee’s Approval of the Torture Convention.

The Reagan Administration’s proposed 19 reservations and other conditions for ratification were criticized by the American Bar Association, human rights groups and others. As a result, nothing happened in the Senate over this treaty during the final months of the Reagan presidency in 1988.[10]

Shortly after President George H.W. Bush took office in January 1989, he indicated that the Convention Against Torture had higher priority for ratification than any other human rights treaty. President Bush then consulted with critics of the prior Administration’s proposed conditions and subsequently submitted a substantially reduced and revised set of proposed reservations and other conditions for the Senate’s advice and consent.[11]

Finally in January 1990 the Senate Foreign Relations Committee held hearings on the treaty. The Administration presented two witnesses: Abraham Soafer, Legal Advisor, Department of State, and Mark Richard, Deputy Attorney General, Criminal Division, Department of Justice. There also were five public witnesses, including Professor David Weissbrodt of the University of Minnesota Law School.[12]

On July 19, 1990, the Committee voted, 10 to 0 (all Democratic Senators), to recommend approval of the treaty by the entire Senate with three reservations, four understandings and two declarations. The nine Republican members of the Committee were not present for that vote due to other Senate business and later complained about the lack of notice of the Committee meeting while simultaneously expressing their support for ratification of the treaty.[13]

The August 30, 1990, Committee report on the treaty said the Convention was “a major step forward in the international community’s efforts to eliminate torture and other cruel, inhuman or degrading treatment or punishment. It “codifies international law as it has evolved . . . on the subject of torture and takes a comprehensive approach. . . .”  Its “strength . . .  lies in the obligation of States Parties to make torture a crime and to prosecute or extradite alleged torturers found in their territory.”[14]

5. U.S. Senate’s Approval of the Torture Convention.

On October 27, 1990, the Senate debated a resolution to approve the treaty. Democratic Senator Clairborne Pell of Rhode Island, the Chairman of the Foreign Relations Committee, introduced the resolution and offered four amendments that had been agreed to by the Republican minority members of the Committee headed by Senator Jesse Helms of North Carolina. These amendments were agreed to by the Senators present and voting. Thereafter a division of the Senate indicated that two-thirds of the Senators present and voting had voted in the affirmative for the resolution of ratification as amended.[15]

The resolution had the following two reservations:[16] (i) the U.S. considered itself bound by Article 16’s ban on “cruel, inhuman or degrading treatment or punishment” only insofar as the phrase means the cruel, unusual and inhumane treatment or punishment prohibited by the U.S. Constitution; and (ii) pursuant to Article 30(2) of the treaty, the U.S. did not regard itself bound by Article 30(1) whereby states agreed to arbitrate any disputes about the treaty while reserving the U.S.’ right to agree to arbitrate a particular dispute.[17]

The resolution had five understandings.[18] The most significant one related to Article 1’s definition of “torture” with the U.S. actually providing the following different definition:

  •  “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; (4) or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”[19]

The resolution also had two declarations.[20] The first stated that CAT was not self-executing, i.e., the treaty was not enforceable in U.S. courts unless there was implementing federal legislation. The second stated that the U.S. recognized the competence of the Committee Against Torture to receive and consider claims by another state that the subject state is not complying with the treaty only if the complaining state had made a similar declaration.

Finally the resolution had a “proviso” that the U.S. President shall notify all present and prospective ratifying parties to the Convention, prior to depositing the instrument of ratification, that the treaty did not require or authorize U.S. legislation or other action prohibited by the U.S. Constitution as interpreted by the U.S. This proviso prompted the most discussion during the Senate debate. It was insisted upon by Senator Helms, who called it the “Sovereignty Amendment.” Democratic Senator Daniel Patrick Moynihan of New York criticized the proviso after pointing out that the U.S. had included similar language in its ratification of the Genocide Convention, but as a reservation, and that various other countries objected to it because it made the U.S. obligations uncertain.[21]

6. U.S. Submission of Ratification Instrument to the U.N. Secretary-General.

As noted above, the Senate’s advice and consent is not the final step in the process of the U.S.’ becoming a party to a treaty. For a multilateral treaty like CAT, the President has to submit U.S. ratification to the U.N. Secretary General.

That did not happen during the George H.W. Bush Administration. The first President Bush said the U.S. could not do so until the U.S. had adopted “implementing legislation” that his Administration had proposed to put torturers “in the same international ‘extradite or prosecute’ regime we have for terrorists.” That legislation, however, was not adopted during that Administration.[22]

In the next Congress, however, such implementing legislation was introduced and enacted into law on April 30, 1994. This legislation added 18 U.S.C. §§ 2340, 230A, which made it a crime for a U.S. national or foreigner present in the U.S. to have committed torture outside the U.S.[23] There is no similar federal criminal law for committing torture within the U.S.; the U.S. has deemed such a law to be unnecessary as such acts would be covered by existing state and federal criminal laws.[24]

In accordance with the previously described “proviso” in the Senate’s approval of the treaty, on June 2, 1994, the Clinton Administration submitted a letter to the Secretary-General giving notice to all present and prospective ratifying Parties to the Convention to the effect that: “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”[25]

The actual U.S. deposit of its instrument of ratification of CAT happened on October 21, 1994, and the treaty went into force for the U.S. on November 20, 1994.[26] Four European states filed objections to some of the U.S. reservations and understandings to its ratification of the treaty.[27]

Conclusion

The seven to nine years it took for the U.N. to develop and approve CAT and the additional 10 years it took for the U.S. to ratify the treaty demonstrate the difficulties of achieving such a treaty, the multitude of opinions and different countries and groups that are involved and the importance of patience and persistence in the development of multilateral human rights treaties. Also significant in light of recent political developments in the U.S., there was consistent, persistent and bipartisan support in the U.S., during the period, 1975 through 1994, for policies to combat, outlaw and punish torture perpetrators.


[1] Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); U.N. High Commissioner for Human Rights, Commission on Human Rights, http://www2.ohchr.org/english/bodies/chr/membership.htm.

[2] U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Cong., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)(containing President Ronald Reagan, Message to the Senate Transmitting the Convention Against Torture and Inhuman Treatment or Punishment (May 20, 1988) [Reagan letter] and letter, Secretary of State Schultz to President Reagan (May 10, 1988)[Schultz letter]); U.S. Senate Comm. on Foreign Relations, Report on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Exec. Rep. 101-30 (101st Cong., 2d Sess. Aug. 30, 1990)[“Senate Comm. Report”]; Senate Debate on Approval of the Convention, 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990)(comments by Senator Pell); Weissbrodt, et al., Prospects for U.S. Ratification of the Convention Against Torture, 83 ASIL Proc 529 (1989)(comments by co-author Paul Hoffman)[“Prospects“].

[3] Id.

[4]  Id.

[5] Prospects (co-author James S. Reynolds discussed his involvement in the State-Justice negotiations; co-author Robert E. Dalton discussed his participation in the State-Senate Committee discussions).

[6] Reuters, U.S. Signs a U.N. Document That Seeks an End to Torture, N.Y. Times (April 19, 1988); U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Conf., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)[containing U.S. Statement Upon Signing Convention].

[7] Reagan letter.

[8]  Schultz letter.

[9]  Id.

[10] Weissbrodt at 140-41; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990) (comments by Senator Pell).

[11] Id.; Senate Comm. Report.

[12] U.S. Senate Foreign Relations Comm., Hearings on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (101st Cong., 2d Sess. Jan. 30, 1990).

[13] Senate Comm. Report.

[14] Id.; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[15] Id.

[16]  The term “reservation” in international law means “the formal declaration by a State, when signing, ratifying, or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving Sate and other States party to the treaty.” (14 M. Whitehead, Digest of International Law, § 7, at 137-38 (1970)[“Whitehead”].)  International law has substantial limitations on a state’s use of reservations to a treaty. (Vienna Convention on the Law of Treaties, arts. 19-23.)  See Weissbrodt at 128-32.

[17] Id.; U.S. Senate, Reservations, Understandings and Declarations to U.S. Accession to CAT, 136 Cong. Rec. S17486-92 (Daily ed. Oct. 27, 1990).

[18]  The term “understanding” in international law usually means “a statement when it is not intended to modify of limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation.” (Whitehead.) Merely calling something an “understanding,” however, does not make it so; if such a statement would exclude or vary the legal effect of any of a treaty’s provisions it would be a reservation subject to challenge. Indeed, Joan Fitzpatrick, a noted law professor, called the then proposed “understandings” with different definitions of “torture” and “cruel, inhuman or degrading treatment or punishment” as de facto and improper reservations. (Prospects (comments by co-author Fitzpatrick).)

[19] See n.17 supra.

[20] In international law the term “declaration” means a statement by the ratifying state “when it is considered essential or desirable to give notice of certain matters of policy or principle, without an  intention of derogating from the substantive rights or obligations [of the treaty].” (Whitehead.)

[21] 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[22]  George Bush Presidential Library & Museum, Statement on Signing the Torture Victims Protection Act of 1991 (March 12, 1992). The Administration had proposed legislation to implement the Convention by making it a crime for a U.S. national or a foreigner present in the U.S. to have committed torture outside the U.S. It passed the House of Representatives in October 1992, but it did not pass the Senate in this Congress. (1992 H.R. 6017; ProQuestCongressional, Bill Tracking Report, 1992 H.R. 6017.)

[23] Pub. L. 103-236, §506(a), 103rd Cong., 2d Sess. (April 30, 1994).

[24] Schultz letter. U.S. federal law does make it a crime to commit certain acts with “intent to torture” in the special maritime and territorial jurisdiction of the U.S. (18 U.S.C. § 114); to commit “genocide” by “torture” or other means (18 U.S.C. § 1001);to commit “murder”  in various ways, including through  “a pattern or practice of . . . torture against a child or children” (18 U.S.C. § 1111); and to commit “war crimes,”  one of which is “torture” (18 U.S.C. § 2441).

[26]  See n.1 supra.

[27] See n.24 supra. Finland, Germany, the Netherlands and Sweden objected to the U.S. reservation regarding “cruel, inhuman or degrading treatment or punishment” as being incompatible with the objects and purpose of the treaty. Germany, the Netherlands and Sweden also stated that the U.S. understandings did not affect U.S. obligations under the treaty. (Id.)