The International Covenant on Civil and Political Rights (ICCPR or Covenant) was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated. [1]
The Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.[2]
The Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty.
A year and a half later (October 5, 1977), the U.S. started its process for ratification of this treaty when President Jimmy Carter signed the Covenant on behalf of the U.S. at the U.N. Headquarters in New York City.
On that occasion the President observed that the Covenant was “concerned about the rights of individual human beings and the duties of governments to the people they are created to serve.” Parties to the Covenant, the President added, pledge, “as a matter of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading treatment.” In addition, this treaty “recognizes the right of every person to freedom of thought, freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, and the right to emigrate from that country.” [3]
Over four months later (February 23, 1978) the next step in the U.S. process was taken. President Carter submitted the Covenant to the U.S. Senate and requested its advice and consent to ratification with reservations, understandings and declarations.[4] He said,
- “While the [U.S.] is a leader in the realization and protection of human rights, it is one of the few large nations that has [sic] not become a party to . . . [this Covenant and the other two U.N. treaties he transmitted]. Our failure to become a party increasingly reflects upon our attainments, and prejudices [U.S.] participation in the development of the international law of human rights. [This Covenant is] . . . based upon the Universal Declaration of Human Rights, in whose conception, formulation and adoption the [U.S.] played a central role. . . . [This Covenant] treats in detail a wide range of civil and political rights. Freedom of speech and thought, participation in government, and others are included which Americans have always considered vital to a free, open and humane society.”
- “The great majority of the substantive provisions of [this Covenant] are entirely consistent with the letter and spirit of the [U.S.] Constitution and laws. Wherever a provision is in conflict with [U.S.] law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understandings and declarations, there are no constitutional or other legal obstacles to [U.S.] ratification.”
In 1979 the U.S. Senate Committee on Foreign Relations held hearings on the treaty, but took no action. Therefore, the Senate as a whole did not consider the treaty at that time. Later Senator Clairborne Pell said that although “there was significant support for ratification [in 1979] . . . domestic and international events at the end of 1979 [the Soviet invasion of Afghanistan and the Iranian hostage crisis] prevented the Foreign Relations Committee from moving to a vote on the covenant after hearings were completed.” Nor was there a vote on the treaty during the Reagan administration (1981-1989), according to Senator Pell, because that Administration had no interest in ratifying this treaty.
This presidential attitude changed in August 1991, with the Administration of George H. W. Bush, who requested the Senate to give its advice and consent to ratification of the Covenant subject to proposed reservations, understandings and declarations substantially the same as those proposed by the Carter Administration in 1978.
In response the Senate Foreign Relations Committee held hearings on the treaty in November 1991, and on March 4, 1992, the Committee voted unanimously to report the treaty favorably to the entire Senate for its consideration. Its report stated, “The . . . Covenant . . . is one of the fundamental instruments created by the international community for the global promotion and protection of human rights. . . . In view of the leading role that the [U.S.] plays in the international struggle for human rights, the absence of U.S. ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the U.S. commitment to human rights and strengthen the impact of U.S. efforts in the human rights field.”
Soon thereafter (April 2, 1992), the U.S. Senate debated the treaty. In presenting the resolution supporting such action, Senator Pell, the Chairman of the Foreign Relations Committee, said the U.S. “plays a leading role in the international struggle to promote and protect human rights. However, failure to ratify the covenant has blemished our record and cast doubt, in some quarters, about the seriousness of our commitment to human rights. Ratification will reverse this situation. It will demonstrate that our commitment is serious and sincere and strengthen our voice as a champion of human rights. Ratification will enable the [U.S.] to participate in the work of the Human Rights Committee established by the covenant to monitor compliance. The rights guaranteed by the covenant are the cornerstones of a democratic society. By ratifying the covenant now, we have an opportunity to promote democratic rights and freedoms and the rule of law in the former Soviet Republics, Eastern Europe, and other areas where democracy is taking hold.”
With little debate the Senate, by a two-thirds vote of those Senators present, then gave its advice and consent to ratification of the Covenant with the following five reservations, understandings, four declarations and one proviso:
- The five reservations (1) preserved the higher protection of free speech and association guaranteed by the U.S. Constitution; (2) reserved the U.S. right to impose the death penalty as punishment for individuals under the age of 18; (3) limited the ban on”cruel, inhuman or degrading treatment or punishment” to the definitions in the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution; (4) reserved the right to impose a criminal penalty in force at the time of an offense even if a lighter penalty is later prescribed; and (5) reserved the right to treat juveniles as adults in exceptional circumstances.
- The five understandings stated that (1) distinctions based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status are permissible if rationally related to a legitimate governmental objective; (2) compensation of victims for unlawful arrest, detention or miscarriage of justice are subject to reasonable requirements of U.S. law; (3) certain practices concerning accused and convicted individuals were preserved; (4) governmental responsibilities to criminal defendants were limited; and (5) the obligation of the U.S.federal government to enforce the Covenant in the federal system were limited.
- The four declarations provided that (I) the Covenant was not self-executing; (2) states could not use the Covenant to reduce any higher standards of U.S. law; (3) the U.S. accepted the competence of the U.N. Human Rights Committee to resolve inter-State claims of non-compliance with the treaty; and (4) the right under Article 47’s right of all peoples to enjoy and utilize natural wealth and resources may be exercised only in accordance with international law.
- The proviso stated that the Covenant did not require or authorize legislation or other action that was prohibited by the U.S. Constitution as interpreted by the U.S.
On June 5, 1992, President George H.W. Bush signed the U.S. instrument of ratification of the Covenant which, his signing statement said, “articulates the principles inherent in a democracy, including freedom of expression and peaceful assembly, equal protection under the law, and the right to liberty and security. By ratifying the Covenant, the United States is underscoring its commitment to these principles at home and abroad. We hope that our ratification of the Covenant will contribute to the fostering of democracy and human rights throughout the world.”
Three days later (June 8, 1992) that instrument of ratification was filed with the U.N. Secretary-General, thus marking the official date of U.S. ratification. This was nearly 26 years after the Covenant had been approved by the U.N.
Thereafter a number of other states filed objections to the U.S. reservations and understandings. [5]
Now 167 states are parties to the Covenant.
This account of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of (a) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and (b) the Genocide Convention.
[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LexisNexis 2009).
[2] The ICCPR is based upon the Universal Declaration of Human Rights, which was adopted by the U.N. General Assembly on December 10, 1948. The Declaration, however, is only a resolution of the General Assembly. It is not a treaty that imposes international legal obligations on states and thus was seen from the start as a basis for subsequent treaties, including the ICCPR.
[3] Weissbrodt, United States Ratification of the Human Rights Conventions, 63 U. MInn. L. Rev. 35 (1978).
[4] Simultaneously President Carter submitted to the Senate: the International Convention on the Elimination of All Forms for Racial Discrimination, which President Gerald Ford had signed on September 28, 1966, and which the U.S. subsequently ratified on October 21, 1994. Two other human rights treaties also were submitted to the Senate by President Carter on February 23, 1978, but they have not yet been ratified by the U.S.: the International Covenant on Economic, Social and Cultural Rights, which President Carter also had signed on October 5, 1977; and the American Convention on Human Rights, which he had signed on June 1, 1977.
[5] Weissbrodt, 63 U. Minn. L. Rev. at 54-77 (analysis and criticism of U.S. reservations, understandings and declarations).